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Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

areas had to meet the "lowest achievable emission rate" under the current state of the art for that type of facility. See The 1976 Ruling did not, however, explicitly adopt or reject the "bubble concept."[21] IV The Clean Air Act Amendments of 1977 are a lengthy, detailed, technical, complex, and comprehensive response to a major social issue. A small portion of the statute — 91 Stat. *849 745-751 (Part D of Title I of the amended Act, 42 U.S. C. 7501-7508) — expressly deals with nonattainment areas. The focal point of this controversy is one phrase in that portion of the Amendments.[22] Basically, the statute required each State in a nonattainment area to prepare and obtain approval of a new SIP by July 1, 1979. In the interim those States were required to comply with the EPA's interpretative Ruling of December 21, 1976. The deadline for attainment of the primary NAAQS's was extended until December 31, and in some cases until December 31, 1987, but the SIP's were required to contain a number of provisions designed to achieve the goals as expeditiously as possible.[23] *850 Most significantly for our purposes, the statute provided that each plan shall "(6) require permits for the construction and operation of new or modified major stationary sources in accordance with section 173" Before issuing a permit, 173 requires (1) the state agency to determine that there will be sufficient emissions reductions in the region to offset the emissions from the new source and to allow for reasonable further progress toward attainment, or that the increased emissions will not exceed an allowance for growth established pursuant to 172(b)(5); (2) the applicant to certify that his other sources in the State are in compliance with the SIP, (3) the agency to determine that the applicable SIP is otherwise being implemented, and (4) the proposed source to comply with the lowest achievable emission rate (LAER).[24] *851 The 1977 Amendments contain no specific reference to the "bubble concept." Nor do they contain a specific definition of the term "stationary source," though they did not disturb the definition of "stationary source" contained in 111(a)(3), applicable by the terms of the Act to the NSPS program. Section 302(j), however, defines the term "major stationary source" as follows: "(j) Except as otherwise expressly provided, the terms `major stationary source' and `major emitting facility' mean any stationary facility or source of air pollutants which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

(including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator)." V The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas does not contain any specific comment on the "bubble concept" or the question whether a plantwide definition of a stationary source is permissible under the permit program. It does, however, plainly disclose that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Indeed, the House Committee Report identified the economic interest as one of the "two main purposes" of this section of the bill. It stated: "Section 117 of the bill, adopted during full committee markup establishes a new section 127 of the Clean Air Act. The section has two main purposes: (1) to allow reasonable economic growth to continue in an area while making reasonable further progress to assure attainment of the standards by a fixed date; and (2) to allow *852 States greater flexibility for the former purpose than EPA's present interpretative regulations afford. "The new provision allows States with nonattainment areas to pursue one of two options. First, the State may proceed under EPA's present `tradeoff' or `offset' ruling. The Administrator is authorized, moreover, to modify or amend that ruling in accordance with the intent and purposes of this section. "The State's second option would be to revise its implementation plan in accordance with this new provision." H. R. Rep. No. 95-294, p. 211 (1977).[25] The portion of the Senate Committee Report dealing with nonattainment areas states generally that it was intended to "supersede the EPA administrative approach," and that expansion should be permitted if a State could "demonstrate that these facilities can be accommodated within its overall plan to provide for attainment of air quality standards." S. Rep. No. 95-127, p. 55 (1977). The Senate Report notes the value of "case-by-case review of each new or modified major source of pollution that seeks to locate in a region exceeding an ambient standard," explaining that such a review "requires matching reductions from existing sources against *853 emissions expected from the new source in order to assure that introduction of the new source will not prevent attainment of the applicable standard by the statutory deadline." This description of a case-by-case approach to plant additions, which emphasizes the net consequences of the construction or modification of a new source, as well as its impact on the overall achievement of the national standards, was not,

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

on the overall achievement of the national standards, was not, however, addressed to the precise issue raised by these cases. Senator Muskie made the following remarks: "I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation [the Offset Ruling] — and to the permit requirements of the revised implementation plans under the conference bill — is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant — or precursor. Thus, a new source is still subject to such requirements as `lowest achievable emission rate' even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels. "A source — including an existing facility ordered to convert to coal — is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for which the standards in the area are exceeded." 123 Cong. Rec. 26847 (1977). VI As previously noted, prior to the 1977 Amendments, the EPA had adhered to a plantwide definition of the term "source" under a NSPS program. After adoption of the 1977 Amendments, proposals for a plantwide definition were considered in at least three formal proceedings. In January 1979, the EPA considered the question whether the same restriction on new construction in nonattainment areas that had been included in its December 1976 Ruling *854 should be required in the revised SIP's that were scheduled to go into effect in July 1979. After noting that the 1976 Ruling was ambiguous on the question "whether a plant with a number of different processes and emission points would be considered a single source," 44 Fed. Reg. 3 (1979), the EPA, in effect, provided a bifurcated answer to that question. In those areas that did not have a revised SIP in effect by July 1979, the EPA rejected the plantwide definition; on the other hand, it expressly concluded that the plantwide approach would be permissible in certain circumstances if authorized by an approved SIP. It stated: "Where a state implementation plan is revised and implemented to satisfy the requirements of Part D, including the reasonable further progress requirement, the plan requirements for major modifications may exempt modifications of existing facilities that are accompanied by intrasource offsets so that there is no net increase in emissions. The agency endorses such exemptions, which would provide greater flexibility to sources to effectively manage their air emissions at least cost."

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

sources to effectively manage their air emissions at least cost." [26] *855 In April, and again in September 1979, the EPA published additional comments in which it indicated that revised SIP's could adopt the plantwide definition of source in nonattainment areas in certain circumstances. See On the latter occasion, the EPA made a formal rulemaking proposal that would have permitted the use of the "bubble concept" for new installations within a plant as well as for modifications of existing units. It explained: " `Bubble' Exemption: The use of offsets inside the same source is called the `bubble.' EPA proposes use of the definition of `source' (see above) to limit the use of the bubble under nonattainment requirements in the following respects: "i. Part D SIPs that include all requirements needed to assure reasonable further progress and attainment by the deadline under section 172 and that are being carried out need not restrict the use of a plantwide bubble, the same as under the PSD proposal. "ii. Part D SIPs that do not meet the requirements specified must limit use of the bubble by including a definition of `installation' as an identifiable piece of process equipment."[27] *856 Significantly, the EPA expressly noted that the word "source" might be given a plantwide definition for some purposes and a narrower definition for other purposes. It wrote: "Source means any building structure, facility, or installation which emits or may emit any regulated pollutant. `Building, structure, facility or installation' means plant in PSD areas and in nonattainment areas except where the growth prohibitions would apply or where no adequate SIP exists or is being carried out."[28] The EPA's summary of its proposed Ruling discloses a flexible rather than rigid definition of the term "source" to implement various policies and programs: "In summary, EPA is proposing two different ways to define source for different kinds of NSR programs: "(1) For PSD and complete Part D SIPs, review would apply only to plants, with an unrestricted plant-wide bubble. "(2) For the offset ruling, restrictions on construction, and incomplete Part D SIPs, review would apply to both plants and individual pieces of process equipment, causing the plant-wide bubble not to apply for new and modified major pieces of equipment. "In addition, for the restrictions on construction, EPA is proposing to define `major modification' so as to prohibit the bubble entirely. Finally, an alternative discussed but not favored is to have only pieces of process equipment reviewed, resulting in no plant-wide bubble and allowing minor pieces of equipment to escape NSR *857 regardless of whether they are within a

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

escape NSR *857 regardless of whether they are within a major plant." In August 1980, however, the EPA adopted a regulation that, in essence, applied the basic reasoning of the Court of Appeals in these cases. The EPA took particular note of the two then-recent Court of Appeals decisions, which had created the bright-line rule that the "bubble concept" should be employed in a program designed to maintain air quality but not in one designed to enhance air quality. Relying heavily on those cases,[29] EPA adopted a dual definition of "source" for nonattainment areas that required a permit whenever a change in either the entire plant, or one of its components, would result in a significant increase in emissions even if the increase was completely offset by reductions elsewhere in the plant. The EPA expressed the opinion that this interpretation was "more consistent with congressional intent" than the plantwide definition because it "would bring in more sources or modifications for review," (1980), but its primary legal analysis was predicated on the two Court of Appeals decisions. In 1981 a new administration took office and initiated a "Government-wide reexamination of regulatory burdens and complexities." In the context of that *858 review, the EPA reevaluated the various arguments that had been advanced in connection with the proper definition of the term "source" and concluded that the term should be given the same definition in both nonattainment areas and PSD areas. In explaining its conclusion, the EPA first noted that the definitional issue was not squarely addressed in either the statute or its legislative history and therefore that the issue involved an agency "judgment as how to best carry out the Act." It then set forth several reasons for concluding that the plantwide definition was more appropriate. It pointed out that the dual definition "can act as a disincentive to new investment and modernization by discouraging modifications to existing facilities" and "can actually retard progress in air pollution control by discouraging replacement of older, dirtier processes or pieces of equipment with new, cleaner ones." Moreover, the new definition "would simplify EPA's rules by using the same definition of `source' for PSD, nonattainment new source review and the construction moratorium. This reduces confusion and inconsistency." Finally, the agency explained that additional requirements that remained in place would accomplish the fundamental purposes of achieving attainment with NAAQS's as expeditiously as possible.[30] These conclusions were expressed *859 in a proposed rulemaking in August 1981 that was formally promulgated in October. See VII In this Court respondents expressly reject the basic rationable of the Court of Appeals'

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

expressly reject the basic rationable of the Court of Appeals' decision. That court viewed the statutory definition of the term "source" as sufficiently flexible to cover either a plantwide definition, a narrower definition covering each unit within a plant, or a dual definition that could apply to both the entire "bubble" and its components. It interpreted the policies of the statute, however, to mandate the plantwide definition in programs designed to maintain clean air and to forbid it in programs designed to improve air quality. Respondents place a fundamentally different construction on the statute. They contend that the text of the Act requires the EPA to use a dual definition — if either a component of a plant, or the plant as a whole, emits over 100 tons of pollutant, it is a major stationary source. They thus contend that the EPA rules adopted in 1980, insofar as they apply to the maintenance of the quality of clean air, as well as the 1981 rules which apply to nonattainment areas, violate the statute.[31] Statutory Language The definition of the term "stationary source" in 111(a)(3) refers to "any building, structure, facility, or installation" which emits air pollution. See This definition is applicable only to the NSPS program by the express terms of the statute; the text of the statute does not make this definition *860 applicable to the permit program. Petitioners therefore maintain that there is no statutory language even relevant to ascertaining the meaning of stationary source in the permit program aside from 302(j), which defines the term "major stationary source." See We disagree with petitioners on this point. The definition in 302(j) tells us what the word "major" means — a source must emit at least 100 tons of pollution to qualify — but it sheds virtually no light on the meaning of the term "stationary source." It does equate a source with a facility — a "major emitting facility" and a "major stationary source" are synonymous under 302(j). The ordinary meaning of the term "facility" is some collection of integrated elements which has been designed and constructed to achieve some purpose. Moreover, it is certainly no affront to common English usage to take a reference to a major facility or a major source to connote an entire plant as opposed to its constituent parts. Basically, however, the language of 302(j) simply does not compel any given interpretation of the term "source." Respondents recognize that, and hence point to 111(a)(3). Although the definition in that section is not literally applicable to the permit program, it sheds as much light

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

applicable to the permit program, it sheds as much light on the meaning of the word "source" as anything in the statute.[32] As respondents point out, use of the words "building, structure, facility, or installation," as the definition of source, could be read to impose the permit conditions on an individual building that is a part of a plant.[33] A "word may have a character of its own not to be submerged by its association." Russell Motor Car On the other hand, the meaning of a word must be ascertained in the context of achieving particular objectives, and the words associated with it may indicate that the true meaning of the series is to convey a common idea. The language may reasonably be interpreted to impose the requirement on any discrete, but integrated, operation which pollutes. This gives meaning to all of the terms — a single building, not part of a larger operation, would be covered if it emits more than 100 tons of pollution, as would any facility, structure, or installation. Indeed, the language itself implies a "bubble concept" of sorts: each enumerated item would seem to be treated as if it were encased in a bubble. While respondents insist that each of these terms must be given a discrete meaning, they argue that 111(a)(3) defines "source" as that term is used in 302(j). The latter section, however, equates a source with a facility, whereas the former defines "source" as a facility, among other items. We are not persuaded that parsing of general terms in the text of the statute will reveal an actual intent of Congress.[34]*862 We know full well that this language is not dispositive; the terms are overlapping and the language is not precisely directed to the question of the applicability of a given term in the context of a larger operation. To the extent any congressional "intent" can be discerned from this language, it would appear that the listing of overlapping, illustrative terms was intended to enlarge, rather than to confine, the scope of the agency's power to regulate particular sources in order to effectuate the policies of the Act. Legislative History In addition, respondents argue that the legislative history and policies of the Act foreclose the plantwide definition, and that the EPA's interpretation is not entitled to deference because it represents a sharp break with prior interpretations of the Act. Based on our examination of the legislative history, we agree with the Court of Appeals that it is unilluminating. The general remarks pointed to by respondents "were obviously not made with this narrow

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

to by respondents "were obviously not made with this narrow issue in mind and they cannot be said to demonstrate a Congressional desire" Jewell Ridge Coal Respondents' argument based on the legislative history relies heavily on Senator Muskie's observation that a new source is subject to the LAER requirement.[35] But the full statement is ambiguous and like the text of 173 itself, this comment does not tell us what a new source is, much less that it is to have an inflexible definition. We find that the legislative history as a whole is silent on the precise issue before us. It is, however, consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments. *863 More importantly, that history plainly identifies the policy concerns that motivated the enactment; the plantwide definition is fully consistent with one of those concerns — the allowance of reasonable economic growth — and, whether or not we believe it most effectively implements the other, we must recognize that the EPA has advanced a reasonable explanation for its conclusion that the regulations serve the environmental objectives as well. See and n. 29; see Indeed, its reasoning is supported by the public record developed in the rulemaking process,[36] as well as by certain private studies.[37] Our review of the EPA's varying interpretations of the word "source" — both before and after the 1977 Amendments — convinces us that the agency primarily responsible for administering this important legislation has consistently interpreted it flexibly — not in a sterile textual vacuum, but in the context of implementing policy decisions in a technical and complex arena. The fact that the agency has from time to time changed its interpretation of the term "source" does not, as respondents argue, lead us to conclude that no deference should be accorded the agency's interpretation of the statute. An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations *864 and the wisdom of its policy on a continuing basis. Moreover, the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress has never indicated any disapproval of a flexible reading of the statute. Significantly, it was not the agency in 1980, but rather the Court of Appeals that read the statute inflexibly to command a plantwide definition for programs designed to maintain clean air and to forbid such a definition for programs designed to improve air quality.

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

such a definition for programs designed to improve air quality. The distinction the court drew may well be a sensible one, but our labored review of the problem has surely disclosed that it is not a distinction that Congress ever articulated itself, or one that the EPA found in the statute before the courts began to review the legislative work product. We conclude that it was the Court of Appeals, rather than Congress or any of the decisionmakers who are authorized by Congress to administer this legislation, that was primarily responsible for the 1980 position taken by the agency. Policy The arguments over policy that are advanced in the parties' briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the "bubble concept," but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges.[38] *865 In these cases the Administrator's interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference: the regulatory scheme is technical and complex,[] the agency considered the matter in a detailed and reasoned fashion,[40] and the decision involves reconciling conflicting policies.[41] Congress intended to accommodate both interests, but did not do so itself on the level of specificity presented by these cases. Perhaps that body consciously desired the Administrator to strike the balance at this level, thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; and perhaps Congress was unable to forge a coalition on either side of the question, and those on each side decided to take their chances with the scheme devised by the agency. For judicial purposes, it matters not which of these things occurred. Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which

Justice Stevens

majority

Chevron USA Inc. v. Natural Resources Defense Council, Inc.

https://www.courtlistener.com/opinion/111221/chevron-usa-inc-v-natural-resources-defense-council-inc/

make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the *866 agency charged with the administration of the statute in light of everyday realities. When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." We hold that the EPA's definition of the term "source" is a permissible construction of the statute which seeks to accommodate progress in reducing air pollution with economic growth. "The Regulations which the Administrator has adopted provide what the agency could allowably view as [an] effective reconciliation of these twofold ends" United The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE MARSHALL and JUSTICE REHNQUIST took no part in the consideration or decision of these cases. JUSTICE O'CONNOR took no part in the decision of these cases.

Justice Stevens

dissenting

United States v. Young

https://www.courtlistener.com/opinion/111353/united-states-v-young/

In the Court recognized that even in the absence of an objection, trial error may require reversal of a criminal conviction on either of two theories: (1) that it reflected prosecutorial misconduct, or (2) that it was obviously prejudicial to the accused. In that case, after determining that the challenged error did not satisfy either standard, the Court concluded that it saw "no reason to require such extravagant protection against errors which were not obviously prejudicial and which the petitioner himself appeared to disregard."[1] It therefore affirmed the judgment of the Court of Appeals in that case. *36 In this case the Court has unanimously concluded that the prosecutor's response to defense counsel's closing argument constituted error.[2] It has thus decided against the Government the principal question that its petition for a writ of certiorari presented.[3] The Court has also unanimously concluded that "the prosecutor's comments crossed the lines of permissible conduct established by the ethical rules of the legal profession." Ante, at 14; see also ante, at 25-26 (BRENNAN, J., joined by MARSHALL and BLACKMUN, JJ., concurring in part and dissenting in part). Thus, at least one of the elements that was absent in Namet is present here. With respect to the second element — prejudice — there is disagreement and, I submit, some confusion within the Court. The majority opinion carefully avoids denying that the prosecutorial misconduct was prejudicial to the accused. Instead, it concludes that the error did not "unfairly" prejudice the jury, ante, at 19, partly because the error was invited by defense counsel's misconduct and partly because the Court is convinced that respondent is guilty.[4] JUSTICE BRENNAN, on the other hand, correctly explains why this Court should permit the Court of Appeals to decide whether *37 the error was "plain" or "harmless." He therefore would send the case back to that court to perform that task.[5] In my opinion, it is perfectly clear that the Court of Appeals has already made that determination. I do not understand how anyone could dispute the proposition that the prosecutor's comments were obviously prejudicial. Instead, the question is whether the degree of prejudice, buttressed by the legitimate interest in deterring prosecutorial misconduct, is sufficient to warrant reversal. On that question, the factor of judgment necessarily plays a critical role.[6] I am persuaded that a due respect for the work of our circuit judges, combined with a fair reading of their opinion in this case, warrants the conclusion that they have already done exactly what JUSTICE BRENNAN would have them do again. The Court of Appeals' opinion took note of

Justice Rehnquist

majority

United States v. Cherokee Nation of Okla.

https://www.courtlistener.com/opinion/111850/united-states-v-cherokee-nation-of-okla/

In Choctaw the Court determined that certain treaties between the Cherokee, Chickasaw, and Choctaw Tribes and the United granted to the Tribes fee simple title to the riverbed underlying specified portions of the Arkansas River in Oklahoma. The Court found the circumstances sufficient to overcome the "strong presumption against conveyance by the United " of title to the bed of a navigable water. See United The question presented in this case is whether the United must pay the Cherokee compensation for damage to these riverbed interests caused by navigational improvements which it has made on the Arkansas River. The damage to sand and gravel deposits resulted from the McClellan-Kerr Project, approved by Congress in 1946, Act of July 24, 1946, ch. 595, 5-6, and designed to improve navigation by construction of a channel in the Arkansas River from its mouth at the Mississippi to Catoosa, Oklahoma. The project was completed in 1971. After our decision in Choctaw the Cherokee sought compensation from the Government. Congress refused to fund the claim after the Department of the Interior *702 and the Army Corps of Engineers concluded that the United ' navigational servitude rendered it meritless. See Department of the Interior and Related Agencies Appropriations for 1980: Hearings Before a Subcommittee of the House Committee on Appropriations, 96th Cong., 1st Sess., pt. 7, pp. 379-392 Congress did, however, provide respondent with the opportunity to seek judicial relief, conferring jurisdiction on the United District Court for the Eastern District of Oklahoma to determine "any claim which the Cherokee of Oklahoma may have against the United for any and all damages to Cherokee tribal assets related to and arising from the construction of the [McClellan-Kerr Project]." H. R. 2329, 97th Cong., 1st Sess. The Cherokee filed a complaint contending that the construction of the McClellan-Kerr Project resulted in a taking under the Fifth Amendment of the Tribe's riverbed interests without just compensation. The United in response claimed that its navigational servitude precluded liability for the alleged taking. The District Court granted the Tribe's motion for summary judgment, finding that the decision in Choctaw created a "unique situation by which a portion of the navigable Arkansas River is, essentially, a private waterway belonging exclusively to the Cherokee" App. to Pet. for Cert. 26a. Because the United did not reserve its navigational servitude in the relevant treaties, the court held, it owed the Tribe just compensation. at 27a.[1] *703 A divided panel of the Court of Appeals for the Tenth Circuit affirmed, adopting a different analysis. The court rejected the District Court's conclusion that the United '

Justice Rehnquist

majority

United States v. Cherokee Nation of Okla.

https://www.courtlistener.com/opinion/111850/united-states-v-cherokee-nation-of-okla/

court rejected the District Court's conclusion that the United ' failure to reserve its navigational servitude defeated that interest. It found it "certain [that] the United retained a navigational servitude in the Arkansas River." Nevertheless, the court held that the servitude was insufficient to protect the United from liability. Finding that "the assertion of a navigational servitude on particular waters acknowledges only that the property owner's right to use these waters is shared with the public at large," the court believed that the effect of the navigational servitude varied with the owner's intended use: "When the exercise of that public power affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due." Applying this test, the court concluded that though the Cherokee could not interfere with the United ' exercise of the navigational servitude, it had a right to compensation for any consequent loss of property or diminution in value.[2] We think the Court of Appeals erred in formulating a balancing test to evaluate this assertion of the navigational servitude. No such "balancing" is required where, as here, the interference with in-stream interests results from an exercise of the Government's power to regulate navigational uses of "the deep streams which penetrate our country in every *704 direction." Though "this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation," Kaiser there can be no doubt that "[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters." United It gives to the Federal Government "a `dominant servitude,' (4), which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject."[3] See also United (0); The application of these principles to interference with streambed interests has not depended on balancing this valid public purpose in light of the intended use of those interests by the owner. Thus, in Lewis Blue Point Oyster Cultivation the Court held that no taking occurred where dredging carried out under the direction of the United destroyed oysters that had been cultivated *705 on privately held lands under

Justice Rehnquist

majority

United States v. Cherokee Nation of Okla.

https://www.courtlistener.com/opinion/111850/united-states-v-cherokee-nation-of-okla/

that had been cultivated *705 on privately held lands under the waters of the Great South Bay in New York. The decision rested on the view that the dominant right of navigation "must include the right to use the bed of the water for every purpose which is in aid of navigation." The Court did not rely on the particular use to which the private owners put the bed, but rather observed that their very title to the submerged lands "is acquired and held subject to the power of Congress to deepen the water over such lands or to use them for any structure which the interest of navigation, in its judgment, may require." See also United ; United These well-established principles concerning the exercise of the United ' dominant servitude would, in the usual case, dictate that we reject respondent's "takings" claim. We do not understand respondent to argue otherwise. See e. g., Brief in Opposition 11-12; Tr. of Oral Arg. 16, 28-29. Instead, the Cherokee asserts that its title to the Arkansas River bed is unique in scope and that interference with that interest requires just compensation. Respondent does not rely explicitly on any language of the relevant treaties, but rather on its reading of Choctaw We have noted that Choctaw involved "very peculiar circumstances," n. 5, in that "the Indians were promised virtually complete sovereignty over their new lands." Choctaw These circumstances allowed the claimants to overcome the strong presumption against conveyance of riverbed interests by the United designed to protect the interests of the under the equal-footing doctrine. See ; Respondent urges that these circumstances further indicate that the United abandoned its navigational servitude in the area. Thus, in respondent's view, the *706 treaties by which it gained fee simple title to the bed of the Arkansas River were such as to make the Arkansas River a "private stream," Brief for Respondent 28, "not intended as a public highway or artery of commerce." We think that the decision in Choctaw was quite generous to respondent, and we refuse to give a still more expansive and novel reading of respondent's property interests. There is certainly nothing in Choctaw itself that suggests such a broad reading of the conveyance. To the contrary, the Court expressly noted that the United had no interest in retaining title to the submerged lands because "it had all it was concerned with in its navigational easement via the constitutional power over commerce." Choctaw The parties, including respondent here, clearly understood that the navigational servitude was dominant no matter how the question of riverbed

Justice Rehnquist

majority

United States v. Cherokee Nation of Okla.

https://www.courtlistener.com/opinion/111850/united-states-v-cherokee-nation-of-okla/

servitude was dominant no matter how the question of riverbed ownership was resolved. See, e. g., Brief for Petitioner in Cherokee O. T. 1969, No. 59, p. 19 ("[T]here is nothing in the conveyance of title to the land beneath the navigable waters which conflicts with the power of the Government to hold such lands for navigation").[4] Any other conclusion would be wholly extraordinary, for we have repeatedly held that the navigational servitude applies to all holders of riparian and riverbed interests. See ; United v. *707 Grand River Dam Authority, ; United v. Chandler-Dunbar Water Power Co., citing Gibson v. United Indeed, even when the sovereign gain "the absolute right to all their navigable waters and the soils under them for their own common use" by operation of the equal-footing doctrine, this "absolute right" is unquestionably subject to "the paramount power of the United to ensure that such waters remain free to interstate and foreign commerce." If the themselves are subject to this servitude, we cannot conclude that respondent — though granted a degree of sovereignty over tribal lands — gained an exemption from the servitude simply because it received title to the riverbed interests. Such a waiver of sovereign authority will not be implied, but instead must be " `surrendered in unmistakable terms.' " quoting Respondent can point to no such terms. We also reject respondent's suggestion that the fiduciary obligations of the United elevate the Government's actions into a taking. It is, of course, well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity. See Seminole v. United When it holds lands in trust on behalf of the tribes, the United may not "give the tribal lands to others, or appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them." United v. Creek These principles, however, do little to aid respondent's cause, for they do not create property rights where none would otherwise exist but rather presuppose that the United has interfered with existing tribal property interests. As we have explained, *708 the tribal interests at issue here simply do not include the right to be free from the navigational servitude, for exercise of the servitude is "not an invasion of any private property rights in the stream or the lands underlying it." United 389 U. S., The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Rehnquist

dissenting

Sporhase v. Nebraska Ex Rel. Douglas

https://www.courtlistener.com/opinion/110799/sporhase-v-nebraska-ex-rel-douglas/

The issue presented by this case, and the only issue, is whether the existence of the Commerce Clause of the United States Constitution by itself, in the absence of any action by Congress, invalidates some or all of (1978), which relates to ground water. But instead of confining its opinion to this question, the Court first quite gratuitously undertakes to answer the question of whether the authority of Congress to regulate interstate commerce, conferred by the same provision of the Constitution, would enable it to legislate with respect to ground-water overdraft in some or all of the States. That these two questions are quite distinct leaves no room for doubt. Congress may regulate not only the stream of commerce itself, but also activities which affect interstate commerce, including wholly intrastate activities. See, e. g., Kirschbaum ; United ; Houston & Texas R. The activity upon which the regulatory effect of the congressional statute falls in many of these cases does not directly involve articles of commerce at all. For example, in Kirschbaum, the employees were engaged in the operation and maintenance of a loft building in which large quantities of goods for interstate commerce were produced; no one contended that these employees themselves, or the work which they actually performed, dealt with articles of commerce. Nonetheless, the provisions of the Fair Labor Standards Act were applied to them because Congress extended the terms of the Act not only to those who were "engaged in commerce" but also to those who were engaged "in the production of goods for commerce." Thus, the authority of Congress under the power to regulate interstate commerce may reach a good deal further than *962 the mere negative impact of the Commerce Clause in the absence of any action by Congress. Upon a showing that ground-water overdraft has a substantial economic effect on interstate commerce, for example, Congress arguably could regulate ground-water overdraft, even if ground water is not an "article of commerce" itself. See, e. g., ; ; It is therefore wholly unnecessary to decide whether Congress could regulate ground-water overdraft in order to decide this case; since Congress has not undertaken such a regulation, I would leave the determination of its validity until such time as it is necessary to decide that question. The question actually involved in this case is whether (1978) runs afoul of the unexercised authority of Congress to regulate interstate commerce. While the Court apparently agrees that our equitable apportionment decrees in cases such as and the execution and approval of interstate compacts apportioning water have given rise to "the

Justice Rehnquist

dissenting

Sporhase v. Nebraska Ex Rel. Douglas

https://www.courtlistener.com/opinion/110799/sporhase-v-nebraska-ex-rel-douglas/

of interstate compacts apportioning water have given rise to "the legal expectation that under certain circumstances each State may restrict water within its borders," ante, at 956, it insists on an elaborate balancing process in which the State's "interest" is weighed under traditional Commerce Clause analysis. I think that in more than one of our cases in which a State has invoked our original jurisdiction, the unsoundness of the Court's approach is manifest. For example, in the Court said: "This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air." *963 Five years earlier, in the Court had made clear that a State's quasi-sovereign interest in the flow of surface and subterranean water within its borders was of the same magnitude as its interest in pure air or healthy forests. In my view, these cases appropriately recognize the traditional authority of a State over resources within its boundaries which are essential not only to the well-being but often to the very lives of its citizens. In the exercise of this authority, a State may so regulate a natural resource as to preclude that resource from attaining the status of an "article of commerce" for the purposes of the negative impact of the Commerce Clause. It is difficult, if not impossible, to conclude that "commerce" exists in an item that cannot be reduced to possession under state law and in which the State recognizes only a usufructuary right. "Commerce" cannot exist in a natural resource that cannot be sold, rented, traded, or transferred, but only used. Of course, a State may not discriminate against interstate commerce when it regulates even such a resource. If the State allows indiscriminate intrastate commercial dealings in a particular resource, it may have a difficult task proving that an outright prohibition on interstate commercial dealings is not such a discrimination. I had thought that this was the basis for this Court's decisions in and In each case, the State permitted a natural resource to be reduced to private possession, permitted an intrastate market to exist in that resource, and either barred interstate commerce entirely or granted its residents a commercial preference.[1] *964 By contrast, Nebraska so regulates ground water that it cannot be said that the State permits any "commerce," intrastate

Justice Rehnquist

dissenting

Sporhase v. Nebraska Ex Rel. Douglas

https://www.courtlistener.com/opinion/110799/sporhase-v-nebraska-ex-rel-douglas/

cannot be said that the State permits any "commerce," intrastate or interstate, to exist in this natural resource. As with almost all of the Western States, Nebraska does not recognize an absolute ownership interest in ground water, but grants landowners only a right to use ground water on the land from which it has been extracted. Moreover, the landowner's right to use ground water is limited. Nebraska landowners may not extract ground water "in excess of a reasonable and beneficial use upon the land in which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole." With the exception of municipal water systems, Nebraska forbids any transportation of ground water off the land owned or controlled by the person who has appropriated the water from its subterranean source. See App. 68-69. Nebraska places additional restrictions on ground-water users within certain areas, such as the portion of appellants' land situated in Nebraska, where the shortage of ground water is determined to be critical. Water users in appellants' district are permitted only to irrigate the acreage irrigated in 1977, or the average number of acres irrigated between 1972 and 1976, whichever is greater, and must obtain permission from the water district's board before any *965 additional acreage may be placed under irrigation. The amount of ground water that may be extracted is strictly limited on an acre-inch-per-irrigated-acre basis. There are also detailed regulations as to the spacing of wells and the use and operation of flow meters. Since Nebraska recognizes only a limited right to use ground water on land owned by the appropriator, it cannot be said that "commerce" in ground water exists as far as Nebraska is concerned. Therefore, it cannot be said that (1978) either discriminates against, or "burdens," interstate commerce. Section 46-613.01 is simply a regulation of the landowner's right to use ground water extracted from lands he owns within Nebraska.[2] Unlike the Court, I cannot agree that Nebraska's limitation upon a landowner's right to extract water from his land situated in Nebraska for his own use on land he owns in an adjoining State runs afoul of Congress' unexercised authority to regulate interstate commerce.[3]

Justice Blackmun

dissenting

FBI v. Abramson

https://www.courtlistener.com/opinion/110712/fbi-v-abramson/

Exemption 7 of the Freedom of Information Act, 5 U.S. C. 552(b)(7), permits agencies to withhold "investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (C) constitute an unwarranted invasion of personal privacy." (Emphasis added.) The Court today holds that this language authorizes petitioner FBI to withhold investigatory records not compiled for law enforcement purposes simply because some information contained in those records was compiled for such purposes. The Court declares that "[o]nce it is established that information was compiled pursuant to a legitimate law enforcement investigation and that disclosure of such information would lead to one of the listed harms [in Exemption 7], the information is exempt." Ante, at 631 (emphasis added). I cannot escape the conclusion that the Court has simply substituted the word "information" for the word "records" in Exemption 7(C). Yet we have earlier recognized that "[t]he Freedom of Information Act deals with `agency records,' not information in the abstract." I agree with JUSTICE O'CONNOR's assessment *633 that the legislative history reveals that Congress chose the term "records," rather than the word "information," advisedly. The Court's unwillingness to give the statutory language its plain meaning requires judges who are evaluating Exemption 7(C) claims to parse agency records and determine whether any piece of information contained in those records was originally compiled for a law enforcement purpose. Because the Court presents no reason, convincing to me, why its deviation from the statutory language is necessary or desirable, I respectfully dissent.

Justice Stevens

concurring

Reves v. Ernst & Young

https://www.courtlistener.com/opinion/112375/reves-v-ernst-young/

While I join the Court's opinion, an important additional consideration supports my conclusion that these notes are securities *74 notwithstanding the statute's exclusion for currency and commercial paper that has a maturity of no more than nine months. See 15 U.S. C. 78c(a)(10) ( 3(a)(10) of the Securities Exchange Act of 1934). The Courts of Appeals have been unanimous in rejecting a literal reading of that exclusion. They have instead concluded that "when Congress spoke of notes with a maturity not exceeding nine months, it meant commercial paper, not investment securities." (CA7), cert. denied, This view was first set out in an opinion by Judge Sprecher, and soon thereafter endorsed by Chief Judge Friendly. (CA2), cert. denied, Others have adopted the same position since. See, e. g., cert. denied, ; ; In my view such a settled construction of an important federal statute should not be disturbed unless and until Congress so decides. "[A]fter a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself." Shearson/American Express ; see also Chesapeake & Ohio R. What I have said before of taxation applies equally to securities regulation: "there is a strong interest in enabling" those affected "to predict the legal consequences of their proposed actions, and there is an even stronger general interest in ensuring that the responsibility for making changes in settled law rests squarely on *75 the shoulders of Congress." Past errors may in rare cases be "sufficiently blatant" to overcome the " `strong presumption of continued validity that adheres in the judicial interpretation of a statute,' " but this is not such a case. ). Indeed, the agreement among the Courts of Appeals is made all the more impressive in this case because it is buttressed by the views of the Securities and Exchange Commission. See Securities Act Release No. 33-4412, (1961) (construing 3(a)(3) of the Securities Act of 1933, the 1933 Act's counterpart to 3(a)(10) of the 1934 Act). We have ourselves referred to the exclusion for notes with a maturity not exceeding nine months as an exclusion for "commercial paper." Securities Industry Perhaps because the restriction of the exclusion to commercial paper is so well established, respondents admit that they did not even argue before the Court of Appeals that their notes were covered by the exclusion. A departure from this reliable consensus would upset the justified expectations of both the legal and investment

Justice Stevens

concurring

Reves v. Ernst & Young

https://www.courtlistener.com/opinion/112375/reves-v-ernst-young/

upset the justified expectations of both the legal and investment communities. Moreover, I am satisfied that the interpretation of the statute expounded by Judge Sprecher and Judge Friendly was entirely correct. As Judge Friendly has observed, the exclusion for short-term notes must be read in light of the prefatory language in 2 of the 1933 Act and 3 of the 1934 Act. See Exchange Nat. Bank of Pursuant to that language, definitions specified by the Acts may not apply if the "context otherwise requires." Marine 455 U.S. 5, ; accord, Landreth Timber *76 The context clause thus permits a judicial construction of the statute which harmonizes the facially rigid terms of the 9-month exclusion with the evident intent of Congress. Exchange Nat. Bank, 544 F. 2d, at 1132-1133. The legislative history of 3(a)(3) of the 1933 Act indicates that the exclusion was intended to cover only commercial paper, and the SEC has so construed it. Sanders, 463 F. 2d, at 1079, and nn. 12-13; Zeller, 476 F. 2d, at 799-, and n. 6. As the Courts of Appeals have agreed, there is no apparent reason to construe 3(a)(10) of the 1934 Act differently. Sanders, 463 F. 2d, at 1079-, and n. 15; Zeller, 476 F. 2d, at See also Comment, The Commercial Paper Market and the Securities Acts, For these reasons and those stated in the opinion of the Court, I conclude that the notes issued by respondents are securities within the meaning of the 1934 Act. CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, concurring in part and dissenting in part. I join Part II of the Court's opinion, but dissent from Part III and the statements of the Court's judgment in Parts I and IV. In Part III, the Court holds that these notes were not covered by the statutory exemption for "any note which has a maturity at the time of issuance of not exceeding nine months." Treating demand notes as if they were a recent development in the law of negotiable instruments, the Court says "if it is plausible to regard a demand note as having an immediate maturity because demand could be made immediately, it is also plausible to regard the maturity of a demand note as being in excess of nine months because demand could be made many years or decades into the future. Given this ambiguity, the exclusion must be interpreted in accordance with its purpose." Ante, at 72-73. *77 But the terms "note" and "maturity" did not spring full blown from the head of Congress in 1934.

Justice Stevens

concurring

Reves v. Ernst & Young

https://www.courtlistener.com/opinion/112375/reves-v-ernst-young/

spring full blown from the head of Congress in 1934. Neither are demand notes of recent vintage. "Note" and "maturity" have been terms of art in the legal profession for centuries, and a body of law concerning the characteristics of demand notes, including their maturity, was in existence at the time Congress passed the 1934 Act. In construing any terms whose meanings are less than plain, we depend on the common understanding of those terms at the time of the statute's creation. See ; Roadway Express, ; Standard Oil Co. of New ; see also ; United Contemporaneous editions of legal dictionaries defined "maturity" as "[t]he time when a note becomes due." Black's Law Dictionary 1170 (3d ed. 1933); Cyclopedic Law Dictionary 649 (2d ed. 1922). Pursuant to the dominant consensus in the case law, instruments payable on demand were considered immediately "due" such that an action could be brought at any time without any other demand than the suit. See, e. g., M. Law of Bills, Notes, and Checks 349, p. 265 (3d ed. W. Lile rev. 1928); 8 C. J., Bills and Notes 602, p. 406, and n. 83 (1916). According to : "So far as maker and acceptor are concerned, paper payable. `on demand' is due from the moment of its delivery, and payment may be required on any business day, including the day of its issue, within the statute of limitations. In other words, as to these parties the paper is at maturity all the time, and no demand of payment is necessary *78 before suit thereon." 349, at 265 (emphasis added; emphasis in original deleted; footnote omitted). To be sure, demand instruments were considered to have "the peculiar quality of having two maturity dates — one for the purpose of holding to his obligation the party primarily liable (e. g. maker), and the other for enforcing the contracts of parties secondarily liable (e. g. drawer and indorsers)." 350, at 266 (emphasis omitted). But only the rule of immediate maturity respecting makers of demand notes has any bearing on our examination of the exemption; the language in the Act makes clear that it is the "maturity at time of issuance" with which we are concerned. 15 U.S. C. 78c(a)(10). Accordingly, in the absence of some compelling indication to the contrary, the maturity date exemption must encompass demand notes because they possess "maturity at the time of issuance of not exceeding nine months."[*] *79 Petitioners and the lower court decisions cited by JUSTICE STEVENS rely, virtually exclusively, on the legislative history of 3(a)(3) of the 1933 Act

Justice Stevens

concurring

Reves v. Ernst & Young

https://www.courtlistener.com/opinion/112375/reves-v-ernst-young/

on the legislative history of 3(a)(3) of the 1933 Act for the proposition that the term "any note" in the exemption in 3(a)(10) of the 1934 Act encompass only notes having the character of short-term "commercial paper" exchanged among sophisticated traders. I am not altogether convinced that the legislative history of 3(a)(3) supports that interpretation even with respect to the term "any note" in the exemption in 3(a)(3), and to bodily transpose that legislative history to another statute has little to commend it as a method of statutory construction. The legislative history of the 1934 Act — under which this case arises — contains nothing which would support a restrictive reading of the exemption in question. Nor does the legislative history of 3(a)(3) of the 1933 Act support the asserted limited construction of the exemption in 3(a)(10) of the 1934 Act. Though the two most pertinent sources of congressional commentary on 3(a)(3) — H. R. Rep. No. 85, 73d Cong., 1st Sess., 15 (1933) and S. Rep. No. 47, 73d Cong., 1st Sess., 3-4 (1933) — do suggest an intent to limit 3(a)(3)'s exemption to short-term commercial paper, the references in those Reports to commercial paper simply did not survive in the language of the enactment. Indeed, the Senate Report stated "[n]otes, drafts, bills of exchange, and bankers' acceptances which are commercial paper and arise out of current commercial, agricultural, or industrial transactions, and which are not intended to be marketed to the public, are exempted." S. Rep. No. 47, Yet the provision enacted in 3(a)(3) *80 of the 1933 Act exempts "[a]ny note, draft, bill of exchange, or banker's acceptance which arises out of a current transaction or the proceeds of which have been or are to be used for current transactions, and which has a maturity at the time of issuance of not exceeding nine months" 15 U.S. C. 77c(a)(3) Such broadening of the language in the enacted version of 3(a)(3), relative to the prototype from which it sprang, cannot easily be dismissed in interpreting 3(a)(3). A fortiori, the legislative history's restrictive meaning cannot be imputed to the facially broader language in a different provision of another Act. Although I do not doubt that both the 1933 and 1934 Act exemptions encompass short-term commercial paper, the expansive language in the statutory provisions is strong evidence that, in the end, Congress meant for commercial paper merely to be a subset of a larger class of exempted short-term instruments. The plausibility of imputing a restrictive reading to 3(a) (10) from the legislative history of 3(a)(3) is further weakened by the

Justice Stevens

concurring

Reves v. Ernst & Young

https://www.courtlistener.com/opinion/112375/reves-v-ernst-young/

the legislative history of 3(a)(3) is further weakened by the imperfect analogy between the two provisions in terms of both phraseology and nature. Section 3(a)(10) lacks the cryptic phrase in 3(a)(3) which qualifies the class of instruments eligible for exemption as those arising "out of current transaction[s] or the proceeds of which have been or are to be used for current transactions" While that passage somehow may strengthen an argument for limiting the exemption in 3(a)(3) to commercial paper, its absence in 3(a)(10) conversely militates against placing the same limitation thereon. The exemption in 3(a)(3) excepts the short-term instruments it covers solely from the registration requirements of the 1933 Act. The same instruments are not exempted from the 1933 Act's antifraud provisions. Compare 15 U.S. C. 77c(a)(3) with 15 U.S. C. 77l(2) and 77q(c); see also Securities Industry 1 By contrast, the exemption in 3(a)(10) of the 1934 Act exempts instruments encompassed thereunder from the entirety of the coverage of the 1934 Act including, conspicuously, the Act's antifraud provisions. JUSTICE STEVENS argues that the suggested limited reading of the exemption in 3(a)(10) of the 1934 Act "harmonizes" the plain terms of that provision with the legislative history of the 1933 Act. Ante, at 76. In his view, such harmony is required by the "context clause" at the beginning of the 1934 Act's general definition of "security." It seems to me, instead, that harmony is called for primarily between 3(a)(10)'s general definition and its specific exemption. The fairest reading of the exemption in light of the context clause is that the situation described in the exemption — notes with maturities at issue of less than nine months — is one contextual exception Congress especially wanted courts to recognize. Such a reading does not render the context clause superfluous; it merely leaves it to the judiciary to flesh out additional "context clause" exceptions. JUSTICE STEVENS also states that we have previously referred to the exemption in 3(a)(10) as an exclusion for commercial paper. Ante, at 76 (citing Securities Industry at ). In the Securities Industry dictum, however, we described the exemption in 3(a)(10) merely as "encompass[ing]" commercial paper and in no way concluded that the exemption was limited to commercial paper. See -1. Indeed, in Securities Industry our purpose in referring to 3(a)(10) was to assist our determination whether commercial paper was even included in the 73d Congress' use of the words "notes or other securities" in the Glass-Steagall Banking Act of 1933. In sum, there is no justification for looking beyond the plain terms of 3(a)(10), save for ascertaining the meaning

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per_curiam

Adarand Constructors, Inc. v. Slater

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

I Congress has adopted a policy that favors contracting with small businesses owned and controlled by the socially and economically disadvantaged. See 8(d)(1) of the Small Business Act, as added by 7 of Stat. 667, and as amended, 15 U.S. C. 637(d)(1) ( ed., Supp. IV). To effectuate that policy, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 1003(b), which is an appropriations measure for the Department of Transportation (DOT), seeks to direct 10 percent of the contracting funds expended on projects funded in whole or in part by the appropriated funds to transportation projects employing so-called disadvantaged business enterprises.[1] ISTEA 1003(b)(1). *218 To qualify for that status, the small business must be certified as owned and controlled by socially and economically disadvantaged individuals. DOT does not itself conduct certifications, but relies on certifications from two main sources: the Small Business Administration, which certifies businesses for all types of federal procurement programs, and state highway agencies, which certify them for purposes of federally assisted highway projects. The federal regulations governing these certification programs, see 13 CFR pt. 124 (Small Business Administration); -5148 (to be codified in 49 CFR pt. 26) (DOT for state highway agencies), require that the certifying entity presume to be socially disadvantaged persons who are black, Hispanic, Asian Pacific, Subcontinent Asian, Native Americans, or members of other groups designated from time to time by the Small Business Administration. See 13 CFR 124.103(b); ( 26.67). State highway agencies must in addition presume that women are socially disadvantaged. Small businesses owned and controlled by persons who are not members of the preferred groups may also be certified, but only if they can demonstrate social disadvantage. See 13 CFR 124.103(c); -5137 ( 26.67(d)); Third parties, as well as DOT, may challenge findings of social disadvantage. See 13 CFR 124.1017(a); ( 26.87). II In 1989, DOT awarded the prime contract for a federal highway project in Colorado to Mountain Gravel & Construction Company. The contract included a Subcontractor Compensation Clause—which the Small Business Act requires all *219 federal agencies to include in their prime contracts, see 15 U.S. C. 637(d)—rewarding the prime contractor for subcontracting with disadvantaged business enterprises, see 637(d)(4)(E). Petitioner, whose principal is a white man, submitted the low bid on a portion of the project, but Mountain Gravel awarded the subcontract to a company that had previously been certified by the Colorado Department of Transportation (CDOT) as a disadvantaged business enterprise. Petitioner brought suit against various federal officials, alleging that the Subcontractor Compensation Clause, and in particular the race-based presumption that forms its foundation,

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per_curiam

Adarand Constructors, Inc. v. Slater

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

and in particular the race-based presumption that forms its foundation, violated petitioner's Fifth Amendment right to equal protection. The Tenth Circuit, applying the so-called intermediate scrutiny approved in some of our cases involving classifications on a basis other than race, see Mississippi Univ. for ; upheld the use of the clause and the presumption. Adarand Constructors, Because DOT's use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, On remand, the District Court for the District of Colorado held that the clause and the presumption failed strict scrutiny because they were not narrowly tailored. Adarand Constructors, Specifically, the court held the presumption that members of the enumerated racial groups are socially disadvantaged to be both overinclusive and underinclusive, because it includes members of those groups who are not disadvantaged and excludes members of other groups who are. The District Court enjoined DOT from *220 using the clause and its presumption.[2] at 1584. Respondents appealed to the Tenth Circuit. Shortly thereafter, and while respondents' appeal was still pending, petitioner filed a second suit in the District Court, this time naming as defendants certain Colorado officials, and challenging (on the same grounds) the State's use of the federal guidelines in certifying disadvantaged business enterprises for federally assisted projects. Adarand Constructors, Inc. v. Romer, Civ. No. 97—K-1351 Shortly after this suit was filed, however, Colorado altered its certification program in response to the District Court's decision in Adarand II. Specifically, the State did away with the presumption of social disadvantage for certain minorities and women, App. to Pet. for Cert. 109-111, and in its place substituted a requirement that all applicants certify on their own account that each of the firm's majority owners "has experienced social disadvantage based upon the effects of racial, ethnic or gender discrimination," Colorado requires no further showing of social disadvantage by any applicant. A few days after Colorado amended its certification procedure, the District Court held a hearing on petitioner's motion for a preliminary injunction in Romer. The District Court took judicial notice of its holding in Adarand II that the Federal Government had discriminated against petitioner's owner "by the application of unconstitutional rules and regulations." App. to Pet. for Cert. 136. As a result of that race-based discrimination, the District Court reasoned, petitioner likely was eligible for disadvantaged business status under Colorado's system for certifying businesses for federally assisted projects—the system at issue in Romer. App. to Pet. for Cert. 137. The District Court therefore denied *221 petitioner's request for a preliminary injunction. Petitioner

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per_curiam

Adarand Constructors, Inc. v. Slater

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

therefore denied *221 petitioner's request for a preliminary injunction. Petitioner then requested and received disadvantaged business status from CDOT. Meanwhile, respondents' appeal from the District Court's decision in Adarand II was pending before the Tenth Circuit. Upon learning that CDOT had given petitioner disadvantaged business status, the Tenth Circuit held that the cause of action was moot, and vacated the District Court's judgment favorable to petitioner in Adarand II. Petitioner filed a petition for certiorari. III In dismissing the case as moot, the Tenth Circuit relied on the language of the Subcontractor Compensation Clause, which provides that "[a] small business concern will be considered a [disadvantaged business enterprise] after it has been certified as such by any State's Department of Highways/Transportation." Because CDOT had certified petitioner as a disadvantaged business enterprise, the court reasoned, the language of the clause indicated that the Federal Government also had accepted petitioner's certification for purposes of federal projects. As a result, petitioner could no longer demonstrate "`an invasion of a legally protected interest' that is sufficiently `concrete and particularized' and `actual or imminent' " to establish standing. Arizonans for Official Because, the court continued, petitioner could not demonstrate such an invasion, its cause of action was 169 F. 3d, -1297. In so holding, the Tenth Circuit "confused mootness with standing," Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., ante, at 189, and as a result placed the burden of proof on the wrong party. If this case is moot, it is because the Federal Government has accepted CDOT's *222 certification of petitioner as a disadvantaged business enterprise, and has thereby ceased its offending conduct. Voluntary cessation of challenged conduct moots a case, however, only if it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United And the "`heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. " Friends of Earth, ante, at 189 (quoting Concentrated Phosphate Export at ). Because respondents cannot satisfy this burden, the Tenth Circuit's error was a crucial one. As common sense would suggest, and as the Tenth Circuit itself recognized, DOT accepts only "valid certification[s]" from state As respondents concede, however, see Brief in Opposition 13-14, n. 6, DOT has yet to approve—as it must—CDOT's procedure for certifying disadvantaged business enterprises, see Fed. Reg. 5129 (49 CFR 26.21(b)(1)) ("[The State] must submit a [disadvantaged business enterprise] program conforming to this part by August 31, to the concerned operating administration"). DOT has promulgated regulations outlining the

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per_curiam

Adarand Constructors, Inc. v. Slater

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

the concerned operating administration"). DOT has promulgated regulations outlining the procedure state highway agencies must follow in certifying firms as disadvantaged business enterprises. See — 5148 (pt. 26). As described earlier, those regulations require the agency to presume that "women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the [Small Business Administration]" are socially disadvantaged. at 5136 ( 26.67(a)(1)). Before individuals not members of those groups may be certified, the state agency must make individual determinations as to disadvantage. See at 5136— 5137 ( 26.67(d)) ("In such a proceeding, the applicant firm *223 has the burden of demonstrating to [the state highway agency], by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged"); (providing list of "elements" that highway agencies must consider in making individualized determinations of social disadvantage). CDOT's new procedure under which petitioner was certified applies no presumption in favor of minority groups, and accepts without investigation a firm's selfcertification of entitlement to disadvantaged business status. See App. to Pet. for Cert. 109-111. Given the material differences (not to say incompatibility) between that procedure and the requirements of the DOT regulations, it is not at all clear that CDOT's certification is a "valid certification," and hence not at all clear that the Subcontractor Compensation Clause requires its acceptance. Before the Tenth Circuit, respondents took pains to "expres[s] no opinion regarding the correctness of Colorado's determination that [petitioner] is entitled to [disadvantaged business] status." Motion by the Federal Appellants to Dismiss Appeal as Moot and to Vacate the District Court Judgment in No. 97-1304, p. 3, n. 2. Instead, they stated flatly that "in the event there is a third-party challenge to [petitioner's] certification as a [disadvantaged business enterprise] and the decision on the challenge is appealed to DOT, DOT may review the decision to determine whether the certification was proper." In addition, DOT itself has the power to require States to initiate proceedings to withdraw a firm's disadvantaged status if there is "reasonable cause to believe" that the firm "does not meet the eligibility criteria" set forth in the federal regulations. ( 26.87(c)(1)). Given the patent incompatibility of the certification with the federal regulations, it is far from clear that these possibilities will not become reality. Indeed, challenges to petitioner's disadvantaged business status seem quite probable now that the Tenth Circuit, by *224 vacating Adarand II, has eliminated the sole basis for petitioner's certification in the first place. The Tenth Circuit dismissed these possibilities as insufficiently particular and

per_curiam

per_curiam

Adarand Constructors, Inc. v. Slater

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

The Tenth Circuit dismissed these possibilities as insufficiently particular and concrete to grant standing and therefore "too conjectural and speculative to avoid a finding of mootness." As we recently noted in Friends of the Earth, however, "[t]he plain lesson of [our precedents] is that there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Ante, at 190. Because, under the circumstances of this case, it is impossible to conclude that respondents have borne their burden of establishing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," ante, at 189, petitioner's cause of action remains alive. * * * It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

dissenting

Northwest Airlines, Inc. v. County of Kent

https://www.courtlistener.com/opinion/112927/northwest-airlines-inc-v-county-of-kent/

Today the Court transforms a statutory prohibition on a narrow class of charges on air travel into a broad mandate for federal regulation and review of virtually all airport fees. I disagree with the Court that the landing fees, rental charges, and carrying charges challenged here fall within the scope of the Anti-Head Tax Act (AHTA or Act), 49 U.S. C. App. 53. Unlike the Court, I do not believe that the Act imposes a "reasonableness" requirement on all airport charges and user fees. Instead, the Act merely prohibits fees, taxes, and charges imposed on the bases specified in 53(a), and leaves airports free to impose other charges, subject to the restrictions of the dormant Commerce Clause. Because the Act does not apply to the fees at issue in this case, I would remand for consideration of petitioners' Commerce Clause claim. Accordingly, I respectfully dissent. I As the Court recognizes, ante, at 362-363, Congress passed the AHTA in response to this Court's decision in *375 Evansville-Vanderburgh Airport Authority which upheld against Commerce Clause challenge the imposition of a per capita ("head") tax on air travelers. The Act was designed primarily to deal with the proliferation of local head taxes in the wake of the Evansville decision. Aloha Two AHTA provisions are relevant here. Section 53(a) prohibits state and local governments from imposing "a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom." Section 53(b), however, states that "nothing in [the Act]" prohibits the imposition of "taxes other than those enumerated in subsection (a)," including, among other things, property and net income taxes, and that the Act does not prohibit "reasonable rental charges, landing fees, and other service charges" collected from "aircraft operators for the use of airport facilities." In the Court's view, 53(a) prohibits virtually all airport user fees, ante, at 365 ("Landing fees, terminal charges, and other airport user fees of the sort here challenged fit 53(a)'s description"), and 53(b) "saves" those fees that are "reasonable," ante, at 366, n. 9 ("[U]ser fees are covered by 53(a), but may be saved by 53(b)"). The Court supports its broad reading of 53(a) in part by noting that the section prohibits not only head taxes but also taxes on gross receipts. Ante, at 365 (citing Aloha -3). That, however, merely states the obvious. Section 53(a) expressly prohibits taxes "on the gross receipts derived" from the sale of air transportation. The

Justice Thomas

dissenting

Northwest Airlines, Inc. v. County of Kent

https://www.courtlistener.com/opinion/112927/northwest-airlines-inc-v-county-of-kent/

gross receipts derived" from the sale of air transportation. The mere fact that the Act is not strictly limited to head taxes, which were the Act's primary target, but also encompasses taxes on gross receipts from the sale of air transportation, *376 in no way suggests that the Act should be read to encompass all airport "user fees." To be sure, the Act's apparently broad ban on any fees, taxes, or charges imposed "directly or indirectly, on persons traveling in air commerce," etc., superficially supports the Court's interpretation. Any cost an airline bears is in some sense an "indirect" charge "on persons traveling in air commerce," because the airline ultimately will pass that cost on to consumers in the form of higher ticket prices. But if 53(a) covers all charges indirectly imposed on air travelers, as the Court apparently believes, see ante, at 365, it should logically encompass all taxes imposed on airlines as well, including property taxes, net income taxes, franchise taxes, and sales and use taxes on the sale of goods and services. Yet 53(b) instructs that such taxes are not covered by 53(a)—that they are "taxes other than those enumerated in subsection (a)." (Emphasis added.) Significantly, 53(b) is not phrased as an exemption for taxes otherwise within 53(a)'s prohibition, but rather as a clarification of the reach of 53(a). It makes clear that the language of 53(a) defining the prohibition does not extend by its own force to the taxes enumerated in 53(b). Under the Court's broad construction of 53(a)'s "directly or indirectly" language, however, the two provisions would appear to be in conflict. Recognizing the significance of 53(b)'s treatment of taxes, the Court implicitly acknowledges that 53(a) does not cover the taxes listed in 53(b). Ante, at 366, n. 9. But the Court can only accomplish this reading by assuming that 53(b) treats the "rental charges, landing fees, and other service charges for the use of airport facilities" listed in that subsection differently from the enumerated taxes. In this understanding, while as to taxes 53(b) merely clarifies the scope of 53(a), as to fees it serves the altogether different function of providing an exemption from 53(a)'s prohibition. The Court supports this reading on *377 the ground that 53(b) does not explicitly describe the fees as distinct from ("other than") the fees prohibited in 53(a). That construction requires a rather unlikely reading of 53(a), however, because it means that the same language defining the scope of the prohibition in that section inexplicably would have one meaning when applied to fees, and quite a different (and more limited)

Justice Thomas

dissenting

Northwest Airlines, Inc. v. County of Kent

https://www.courtlistener.com/opinion/112927/northwest-airlines-inc-v-county-of-kent/

applied to fees, and quite a different (and more limited) meaning when applied to taxes. None of the taxes listed in 53(b), although borne indirectly by airline passengers, would constitute a "tax, fee, or other charge, [levied] directly or indirectly, on persons traveling in air commerce," etc. But a user fee charged to an airline, because it is borne indirectly by airline passengers, would constitute such a "tax, fee, or other charge." Thus, the prohibition in 53(a) would not extend to, for example, property taxes, because they are not imposed on one of the bases listed in 53(a), but would extend to other fees or charges, regardless of the basis upon which they are imposed. Adherence to the plain language of 53(a) avoids these problems. In my view, when the statute prohibits a tax or charge "on persons traveling in air commerce," "on the carriage of" such persons, "on the sale of air transportation," or "on the gross receipts derived therefrom," it defines the prohibition in terms of the prohibited basis of the tax or charge. That is, 53(a) prohibits the levy or collection of a tax or fee "on" certain subjects. A head tax, for example, is a charge "on persons traveling in air commerce" in that it is imposed on a per passenger basis. A landing fee, by contrast, is not—rather, it is a charge on an aircraft's landing at an airport, without regard to the number of passengers it carries.[] *378 Section 53(b) confirms that 53(a) is concerned with the basis on which the tax or charge is calculated. Property taxes, net income taxes, and franchise taxes are not imposed on one of the bases prohibited in 53(a), and as explained above, are not included in 53(a). Because the same language in 53(a) restricts taxes as well as fees and other charges, it seems logical that the fees referred to in 53(b), which also are not generally calculated on the bases listed in 53(a), are similarly beyond 53(a)'s prohibition. Section 53(b)'s reference to "reasonable" charges, then, does not impose a requirement that all airport user fees be "reasonable." Instead, it simply makes clear that state and local governments remain free to impose charges other than those proscribed by 53(a). Cf. Aloha n. 6 pre-empts a limited number of state taxes, [and] []53(b) clarifies Congress' view that the States are still free to impose on airlines and air carriers `taxes other than those enumerated in subsection (a)'"). That is not to say that the term "reasonable" is superfluous. Had the Act made unqualified reference to landing fees and

Justice Thomas

dissenting

Northwest Airlines, Inc. v. County of Kent

https://www.courtlistener.com/opinion/112927/northwest-airlines-inc-v-county-of-kent/

Had the Act made unqualified reference to landing fees and other user fees, it might have been read as an indication of congressional intent to authorize fees or charges that would otherwise be invalid under the dormant Commerce Clause. See An unqualified reference might have also been understood to permit landing fees and other fees calculated on one of the bases prohibited by 53(a). See n. By including the term "reasonable," Congress ensured that the Act would not *379 be understood to displace the dormant Commerce Clause or to exempt user fees on aircraft operators per se from 53(a). In short, 53(b) merely clarifies that fees, taxes, and other charges not encompassed within 53(a) may be imposed if consistent with our dormant Commerce Clause jurisprudence.[2] II The considerable difficulty the Court has in finding content for the term "reasonable" should signal that Congress did not intend the Act to impose a comprehensive new regulation on airport fees. As the Court admits, the Act itself sets no standards for reasonableness. Ante, at 366. Finding no other source for a definition, the Court uses Evansville as its test of reasonableness, apparently for want of anything better. See ante, at 367-368. The Court seems to recognize that this is not a perfect fit (but "will suffice for the purpose at hand," ante, at 368), and with good reason. Reasonableness was only one of several factors considered in Evansville; nondiscrimination against interstate commerce is a separate concern and is of at least equal importance. See 405 U.S., at 76-77. Moreover, as the Court acknowledges, Congress enacted the Act precisely because it found the result in Evansville "unsatisfactory." Ante, at 368. Nevertheless, the Court reads the Evansville standard into the statute for no reason other than that the parties invite us to do so and that this Court (after enactment of the AHTA) occasionally has applied Evansville to test reasonableness in other contexts. Ante, at 367-368. That the parties agree on a standard, however, does not mean that it is the correct one. Moreover, it seems somewhat odd to import into the Act the very standard that created the problem Congress ostensibly intended the Act to "correct." Indeed, read as the Court construes it, the Act would fail to prohibit *380 precisely the sort of fees 53(a) most clearly forbids. A head tax itself was held to be a "reasonable" user fee in Evansville (assuming, as the Court does, that Evansville applied a "reasonableness" standard). Under the Court's interpretation of the AHTA, there is nothing to prevent an airport from imposing a modest per passenger

Justice Thomas

dissenting

Northwest Airlines, Inc. v. County of Kent

https://www.courtlistener.com/opinion/112927/northwest-airlines-inc-v-county-of-kent/

to prevent an airport from imposing a modest per passenger fee on airlines as a service charge for use of airport facilities.[3] Such a fee would pass muster under Evansville, and therefore would be "saved" by 53(b) as a "reasonable" fee, even though it is clearly a charge "on the carriage of persons traveling in air commerce." 53(a).[4] It is doubtful that Congress intended the AHTA to prohibit "unreasonable" landing fees, whatever they might be, while permitting "Evansville-reasonable" per capita user fees on aircraft operators. If, as the Court implies, Congress disapproved of the result but not the analysis in Evansville, it seems far more likely that it would have left the Commerce Clause analysis undisturbed while prohibiting head taxes and similar fees. In my view, that is precisely what 53 does. Having applied a construction of "reasonable" that it admits is not compelled by the Act, the Court invites the Secretary of Transportation to devise a different, presumably better, *38 interpretation of the term, to which the Court will defer if it is a permissible construction of the Act.[5]Ante, at 368, n. 4. Given that the Act sets no standards for "reasonableness," ante, at 366, it is difficult to imagine how the Secretary's interpretation could be an impermissible one. Indeed, although the Court seems to assume that the standard would be at least as rigorous as the one it applies here, presumably the Secretary could, in the exercise of his expertise, devise a more permissive standard. Under the Court's analysis, there is no reason to assume that the Evansville standard is a minimum. If the Act imposes the comprehensive regulation of the reasonableness of airport charges that the Court sees, it would certainly constitute a clear expression of Congress' intention to displace the dormant Commerce Clause in this area, see 477 U. S., 9, in which case the Secretary would be free to regulate either more or less restrictively than would the dormant Commerce Clause. Cf. 455 U.S. 30, 54 (982). I simply find nothing in the AHTA that gives the Secretary such unbridled discretion to regulate all airport user fees. III Because the AHTA does not, in my view, apply to the fees in this case, it does not foreclose petitioners' challenge under the dormant Commerce Clause.[6] The courts below, however, *382 held that the Act, as they interpreted it, precluded that claim. 955 F.2d 054, 063-064 (CA6 992); No. G88-243 CA (WD Mich., Jan. 9, 990), App. to Pet. for Cert. 46a. Because the lower courts should be given the opportunity to consider the merits of petitioners'

Justice Rehnquist

dissenting

Hicks v. Oklahoma

https://www.courtlistener.com/opinion/110303/hicks-v-oklahoma/

The Court concludes that the Oklahoma Court of Criminal Appeals denied petitioner due process of law by refusing to vacate the sentence imposed at his trial for unlawful distribution *348 of heroin. That conclusion, in turn, depends on the Court's assertion that petitioner was impermissibly denied his state-created right to be sentenced by a jury. Because I believe that the Court either mischaracterizes the right conferred by state law or erroneously assumes a deprivation of that right, I dissent. The Court is undoubtedly correct that Oklahoma law does confer a right to have a sentence imposed by a jury. Okla. Stat., Tit. 22, 926 (1971). But it is equally true that petitioner was sentenced by a jury. The question is whether that sentence was validly imposed, either as a matter of state or federal law. For if the petitioner was constitutionally sentenced by his jury in the first instance, he has been afforded the process the State guaranteed him. The Oklahoma court found that petitioner was not properly sentenced. If this conclusion rested on an interpretation of state law, or a correct interpretation of federal law, then I would have less difficulty agreeing with the Court that petitioner was entitled to a new jury sentencing under principles of due process. But the Court fails to inquire into the basis of the Oklahoma court's conclusion that petitioner was improperly sentenced in the first instance. That question is central to the resolution of the due process issue presented by the case. The Court simply assumes that the Oklahoma court found that petitioner had not been sentenced in conformity with state law. This is an assumption, however, that cannot be divined from the available state cases. Those cases in fact strongly indicate that the decision of the state court here rested on an erroneous interpretation of federal law, not state law. If so, the Oklahoma court decision refusing to afford petitioner an opportunity to be resentenced by a jury would be correct, albeit for the wrong reason. The issue in this case, then, is whether petitioner's original sentence denied him equal protection. The Oklahoma sentencing statute in effect at the time of petitioner's trial was designed to provide for increased sentences to multiple offenders *349 of the criminal laws.[*] Under Okla. Stat., Tit. 21, 51 (A) a defendant who is found guilty of an offense punishable by a term of imprisonment in excess of 5 years, after having been convicted of one offense punishable by imprisonment, is subject to sentence, fixed by the jury, ranging from 10 years to apparent infinity.) Defendants convicted

Justice Rehnquist

dissenting

Hicks v. Oklahoma

https://www.courtlistener.com/opinion/110303/hicks-v-oklahoma/

jury, ranging from 10 years to apparent infinity.) Defendants convicted of more than one *350 prior offense were subject to sentencing under 51 (B). Section 51 (B) did not invest the jury with discretion to determine the length of the term of imprisonment. Instead the section provided a formula for determining the length of the mandatory sentence to be imposed by a jury pursuant to instruction. This statutory scheme permitted the jury to impose sentence on defendants with only one prior conviction far in excess of those which were specified for defendants with two or more prior convictions. In decided after petitioner's mandatory sentence was imposed by the jury, a defendant with only one prior conviction challenged the constitutionality of the statute. The court concluded that this potential for disparate sentences rendered 51 (B) "unconstitutional," and struck that section. The Thigpen opinion does not indicate whether this conclusion is based on an interpretation of the State or Federal Constitution. The opinion does indicate, however, that in determining the constitutionality of the Act, the court had relied on an advisory opinion submitted by an Oklahoma state district n. 3. That advisory opinion is attached as an appendix to the court opinion. The position advocated in the advisory opinion is that the Oklahoma sentencing statute violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because of the potential for longer terms of imprisonment to those convicted of only one prior offense. The author of the advisory opinion relies exclusively on federal law in reaching this determination. In this case, the Oklahoma court thought the federal equal protection holding in Thigpen applied to petitioner's sentencing as well. I cannot agree. Petitioner was a third-time offender who was given the benefit of the more lenient mandatory sentencing provisions before the decision in Thigpen. Thus he was not within the class of one-time offenders subject to more burdensome treatment under the statute. Since *351 petitioner was a member of the favored class, I cannot agree that petitioner's sentencing denied him equal protection or any other rights guaranteed under the Federal Constitution, I am unable to agree that due process required the State to afford him any additional opportunity to be sentenced by another jury, and would therefore affirm the judgment of the Court of Criminal Appeals of Oklahoma.

Justice Ginsburg

dissenting

Republic of Argentina v. NML Capital, Ltd.

https://www.courtlistener.com/opinion/2679202/republic-of-argentina-v-nml-capital-ltd/

The Foreign Sovereign Immunities Act of 1976, 28 U.S. C. 1602 et seq., if one of several conditions is met, permits execution of a judgment rendered in the United States against a foreign sovereign only on “property in the United States used for a commercial activity.” Accordingly, no inquiry into a foreign sover- eign’s property in the United States that is not “used for a commercial activity” could be ordered; such an inquiry, as the Court recognizes, would not be “ ‘relevant’ to execu- tion in the first place.” Ante, at 10 (citing Fed. Rule Civ. Proc. 26(b)(1)). Yet the Court permits unlimited inquiry into Argentina’s property outside the United States, whether or not the property is “used for a commercial activity.” By what authorization does a court in the United States become a “clearinghouse for information,” ante, at 3 (internal quotation marks omitted), about any and all property held by Argentina abroad? NML may seek such information, the Court reasons, because “NML does not yet know what property Argentina has [outside the United States], let alone whether it is executable under the rele- vant jurisdiction’s law.” Ante, at 10. But see Société Nationale Industrielle (observing that other jurisdictions generally allow much 2 REPUBLIC OF ARGENTINA v. NML CAPITAL, LTD. GINSBURG, J., dissenting more limited discovery than is available in the United States). A court in the United States has no warrant to indulge the assumption that, outside our country, the sky may be the limit for attaching a foreign sovereign’s property in order to execute a U. S. judgment against the foreign sovereign. Cf. (“Under international law, th[e] commercial property [of a state] may be levied upon for the satisfaction of judgments rendered against [the state] in connection with [its] commercial activities.” (emphasis added)). Without proof of any kind that other nations broadly expose a foreign sovereign’s property to arrest, attachment or execution, a more modest assumption is in order. See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 207 (CA2 2012) (recognizing that postjudgment dis- covery “must be calculated to assist in collecting on a judgment” (citing Fed. Rules Civ. Proc. 26(b)(1), 69(a)(2))). Unless and until the judgment debtor, here, NML, proves that other nations would allow unconstrained access to Argentina’s assets, I would be guided by the one law we know for sure—our own. That guide is all the more appropriate, as our law coincides with the interna- tional norm. See Accordingly, I would limit NML’s discovery to property used here or abroad “in connection with commercial activities.” §, 1610(a). I there- fore dissent from the

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

I join the respective opinions of THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST, and add only the following, somewhat personal, comments. 1. Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible *406 with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments. 2. Having lived for many years in a State that does not have the death penalty,[1] that effectively abolished it in 1911,[2] and that carried out its last execution on February 13, 1906,[3] capital punishment had never been a part of life for me. In my State, it just did not exist. So far as I can determine, the State, purely from a statistical deterrence point of view, was neither the worse nor the better for its abolition, for, as the concurring opinions observe, the statistics prove little, if anything. But the State and its citizens accepted the fact that the death penalty was not to be in the arsenal of possible punishments for any crime. 3. I, perhaps alone among the present members of the Court, am on judicial record as to this. As a member of the United Court of Appeals, I first struggled silently with the issue of capital punishment in cert. denied, The defendant in that case may have been one of the last to be executed under federal auspices. I struggled again with the issue, and once more refrained from comment, in my writing for an en banc court in vacated ) and remanded, Finally, in Maxwell vacated and remanded, sua sponte, by the Court on grounds not raised below, I revealed, solitarily and not for the panel, my distress and -154.[4] And in I had no hesitancy in writing a panel opinion that held the use of the strap by trusties upon fellow Arkansas prisoners to be a violation of the Eighth Amendment. That, however, was in-prison punishment

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

violation of the Eighth Amendment. That, however, was in-prison punishment imposed by inmate-foremen. 4. The several concurring opinions acknowledge, as they must, that until today capital punishment was accepted and assumed as not unconstitutional per se under the Eighth Amendment or the Fourteenth Amendment. This is either the flat or the implicit holding of a unanimous Court in in 1879; of a unanimous Court in In re in 1890; of the Court in in 1910; of all those members of the Court, a majority, who addressed the issue in Louisiana ex rel. in 1947; of Mr. Chief Justice Warren, speaking for himself and three others (Justices Black, DOUGLAS, *408 and Whittaker) in in 1958;[5] in the denial of certiorari in in 1963 (where, however, JUSTICES DOUGLAS, BRENNAN, and Goldberg would have heard argument with respect to the imposition of the ultimate penalty on a convicted rapist who had "neither taken nor endangered human life"); and of Mr. Justice Black in decided only last Term on May 3, 1971.[6] Suddenly, however, the course of decision is now the opposite way, with the Court evidently persuaded that somehow the passage of time has taken us to a place of greater maturity and outlook. The argument, plausible and high-sounding as it may be, is not persuasive, for it is only one year since McGautha, only eight and one-half years since Rudolph, 14 years since Trop, and 25 years since Francis, and we have been presented with nothing that demonstrates a significant movement of any kind in these brief periods. The Court has just decided that it is time to strike down the death penalty. There would have been as much reason to do this *409 when any of the cited cases were decided. But the Court refrained from that action on each of those occasions. The Court has recognized, and I certainly subscribe to the proposition, that the Cruel and Unusual Punishments Clause "may acquire meaning as public opinion becomes enlightened by a humane justice." And Mr. Chief Justice Warren, for a plurality of the Court, referred to "the evolving standards of decency that mark the progress of a maturing society." Mr. Jefferson expressed the same thought well.[7] *410 My problem, however, as I have indicated, is the suddenness of the Court's perception of progress in the human attitude since decisions of only a short while ago. 5. To reverse the judgments in these cases is, of course, the easy choice. It is easier to strike the balance in favor of life and against death. It is comforting to relax in the thoughts—perhaps

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

against death. It is comforting to relax in the thoughts—perhaps the rationalizations— that this is the compassionate decision for a maturing society; that this is the moral and the "right" thing to do; that thereby we convince ourselves that we are moving down the road toward human decency; that we value life even though that life has taken another or others or has grievously scarred another or others and their families; and that we are less barbaric than we were in 1879, or in 1890, or in 1910, or in 1947, or in 1958, or in 1963, or a year ago, in 1971, when Wilkerson, Weems, Francis, Trop, Rudolph, and McGautha were respectively decided. This, for me, is good argument, and it makes some sense. But it is good argument and it makes sense only in a legislative and executive way and not as a judicial expedient. As I have said above, were I a legislator, I would do all I could to sponsor and to vote for legislation abolishing the death penalty. And were I the chief executive of a sovereign State, I would be sorely tempted to exercise executive clemency as Governor Rockefeller of Arkansas did recently just before he departed from office. There—on the Legislative Branch of the State or Federal Government, and secondarily, on the Executive Branch—is where the authority and responsibility for this kind of action lies. The authority should not be taken over by the judiciary in the modern guise of an Eighth Amendment issue. I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. *411 Our task here, as must so frequently be emphasized and re-emphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible. 6. The Court, in my view, is somewhat propelled toward its result by the interim decision of the Supreme Court, with one justice dissenting, that the death penalty is violative of that State's constitution. So far as I am aware, that was the first time the death penalty in its entirety has been nullified by judicial decision. Cf. cert. denied, post, p. 942. 's moral problem was a profound one, for

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

p. 942. 's moral problem was a profound one, for more prisoners were on death row there than in any other State. of course, has the right to construe its constitution as it will. Its construction, however, is hardly a precedent for federal adjudication. 7. I trust the Court fully appreciates what it is doing when it decides these cases the way it does today. Not only are the capital punishment laws of 39 and the District of Columbia struck down, but also all those provisions of the federal statutory structure that permit the death penalty apparently are voided. No longer is capital punishment possible, I suspect, for, among other crimes, treason, 18 U.S. C. 2381; or assassination of the President, the Vice President, or those who stand elected to those positions, 18 U.S. C. 1751; or assassination of a Member or member-elect of Congress, 18 U.S. C. 351; or espionage, 18 U.S. C. 794; *412 or rape within the special maritime jurisdiction, 18 U.S. C. 2031; or aircraft or motor vehicle destruction where death occurs, 18 U.S. C. 34; or explosives offenses where death results, 18 U.S. C. 844 (d) and (f); or train wrecking, 18 U.S. C. 12; or aircraft piracy, 49 U.S. C. 1472 (i). Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice. 10 U.S. C. 885, 890, 894, 8, 901, 904, 906, 913, 918, and 920. All these seem now to be discarded without a passing reference to the reasons, or the circumstances, that prompted their enactment, some very recent, and their retention in the face of efforts to repeal them. 8. It is of passing interest to note a few voting facts with respect to recent federal death penalty legislation: A. The aircraft piracy statute, 49 U.S. C. 1472 (i), was enacted September 5, 1961. The Senate vote on August 10 was 92-0. It was announced that Senators Chavez, Fulbright, Neuberger, and Symington were absent but that, if present, all four would vote yea. It was also announced, on the other side of the aisle, that Senator Butler was ill and that Senators Beall, Carlson, and Morton were absent or detained, but that those four, if present, would vote in the affirmative. These announcements, therefore, indicate that the true vote was 100-0. 107 Cong. Rec. 15440. The House passed the bill without recorded vote. 107 Cong. Rec. 16849. B. The presidential assassination statute, 18 U.S. C. 1751, was approved August 28, 1965, without recorded votes. 111 Cong. Rec. 14103, 18026, and 20239. C. The

Justice Blackmun

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votes. 111 Cong. Rec. 14103, 18026, and 20239. C. The Omnibus Crime Control Act of was approved January 2, 1971. Title IV thereof added the congressional assassination statute that is now 18 U.S. C. 351. The recorded House vote on October 7, was 341-26, with 63 not voting and 62 of those paired. 116 Cong. Rec. 35363-35364. The Senate vote on October 8 *413 was 59-0, with 41 not voting, but with 21 of these announced as favoring the bill. 116 Cong. Rec. 35743. Final votes after conference were not recorded. 116 Cong. Rec. 42150, 421. It is impossible for me to believe that the many lawyer-members of the House and Senate—including, I might add, outstanding leaders and prominent candidates for higher office—were callously unaware and insensitive of constitutional overtones in legislation of this type. The answer, of course, is that in 1961, in 1965, and in these elected representatives of the people—far more conscious of the temper of the times, of the maturing of society, and of the contemporary demands for man's dignity, than are we who sit cloistered on this Court— took it as settled that the death penalty then, as it always had been, was not in itself unconstitutional. Some of those Members of Congress, I suspect, will be surprised at this Court's giant stride today. 9. If the reservations expressed by my Brother STEWART (which, as I read his opinion, my Brother WHITE shares) were to command support, namely, that capital punishment may not be unconstitutional so long as it be mandatorily imposed, the result, I fear, will be that statutes struck down today will be re-enacted by state legislatures to prescribe the death penalty for specified crimes without any alternative for the imposition of a lesser punishment in the discretion of the judge or jury, as the case may be. This approach, it seems to me, encourages legislation that is regressive and of an antique mold, for it eliminates the element of mercy in the imposition of punishment. I thought we had passed beyond that point in our criminology long ago. 10. It is not without interest, also, to note that, although the several concurring opinions acknowledge the heinous and atrocious character of the offenses committed by the petitioners, none of those opinions makes *414 reference to the misery the petitioners' crimes occasioned to the victims, to the families of the victims, and to the communities where the offenses took place. The arguments for the respective petitioners, particularly the oral arguments, were similarly and curiously devoid of reference to the victims. There is risk, of

Justice Blackmun

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Furman v. Georgia

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devoid of reference to the victims. There is risk, of course, in a comment such as this, for it opens one to the charge of emphasizing the retributive. But see Nevertheless, these cases are here because offenses to innocent victims were perpetrated. This fact, and the terror that occasioned it, and the fear that stalks the streets of many of our cities today perhaps deserve not to be entirely overlooked. Let us hope that, with the Court's decision, the terror imposed will be forgotten by those upon whom it was visited, and that our society will reap the hoped-for benefits of magnanimity. Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting. The Court granted certiorari in these cases to consider whether the death penalty is any longer a permissible form of punishment. It is the judgment of five Justices that the death penalty, as customarily prescribed and implemented in this country today, offends the constitutional prohibition against cruel and unusual punishments. The reasons for that judgment are stated in five separate opinions, expressing as many separate rationales. In my view, none of these opinions provides a constitutionally adequate foundation for the Court's decision. *415 MR. JUSTICE DOUGLAS concludes that capital punishment is incompatible with notions of "equal protection" that he finds to be "implicit" in the Eighth Amendment. Ante, at 257. MR. JUSTICE BRENNAN bases his judgment primarily on the thesis that the penalty "does not comport with human dignity." Ante, at 270. MR. JUSTICE STEWART concludes that the penalty is applied in a "wanton" and "freakish" manner. Ante, at 310. For MR. JUSTICE WHITE it is the "infrequency" with which the penalty is imposed that renders its use unconstitutional. Ante, at 313. MR. JUSTICE MARSHALL finds that capital punishment is an impermissible form of punishment because it is "morally unacceptable" and "excessive." Ante, at 360, 358. Although the central theme of petitioners' presentations in these cases is that the imposition of the death penalty is per se unconstitutional, only two of today's opinions explicitly conclude that so sweeping a determination is mandated by the Constitution. Both MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL call for the abolition of all existing state and federal capital punishment statutes. They intimate as well that no capital statute could be devised in

Justice Blackmun

second_dissenting

Furman v. Georgia

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as well that no capital statute could be devised in the future that might comport with the Eighth Amendment. While the practical consequences of the other three opinions are less certain, they at least do not purport to render impermissible every possible statutory scheme for the use of capital punishment that legislatures might hereafter devise.[1] Insofar as these latter opinions fail, at least explicitly, *416 to go as far as petitioners' contentions would carry them, their reservations are attributable to a willingness to accept only a portion of petitioners' thesis. For the reasons cogently set out in the CHIEF JUSTICE'S dissenting opinion (ante, at 396-403), and for reasons stated elsewhere in this opinion, I find my Brothers' less-than-absolute-abolition judgments unpersuasive. Because those judgments are, for me, not dispositive, I shall focus primarily on the broader ground upon which the petitions in these cases are premised. The foundations of my disagreement with that broader thesis are equally applicable to each of the concurring opinions. I will therefore, not endeavor to treat each one separately. Nor will I attempt to predict what forms of capital statutes, if any, may avoid condemnation in the future under the variety of views expressed by the collective majority today. That difficult task, not performed in any of the controlling opinions, must go unanswered until other cases presenting these more limited inquiries arise. Whatever uncertainties may hereafter surface, several of the consequences of today's decision are unmistakably clear. The decision is plainly one of the greatest importance. *417 The Court's judgment removes the death sentences previously imposed on some 600 persons awaiting punishment in state and federal prisons throughout the country. At least for the present, it also bars the and the Federal Government from seeking sentences of death for defendants awaiting trial on charges for which capital punishment was heretofore a potential alternative. The happy event for these countable few constitutes, however, only the most visible consequence of this decision. Less measurable, but certainly of no less significance, is the shattering effect this collection of views has on the root principles of stare decisis, federalism, judicial restraint and—most importantly —separation of powers. The Court rejects as not decisive the clearest evidence that the Framers of the Constitution and the authors of the Fourteenth Amendment believed that those documents posed no barrier to the death penalty. The Court also brushes aside an unbroken line of precedent reaffirming the heretofore virtually unquestioned constitutionality of capital punishment. Because of the pervasiveness of the constitutional ruling sought by petitioners, and accepted in varying degrees by five members of the Court,

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

accepted in varying degrees by five members of the Court, today's departure from established precedent invalidates a staggering number of state and federal laws. The capital punishment laws of no less than 39 [2] and the District of Columbia are nullified. In addition, numerous provisions of the Criminal Code of the United and of the Uniform Code of Military *418 Justice also are voided. The Court's judgment not only wipes out laws presently in existence, but denies to Congress and to the legislatures of the 50 the power to adopt new policies contrary to the policy selected by the Court. Indeed, it is the view of two of my Brothers that the people of each State must be denied the prerogative to amend their constitutions to provide for capital punishment even selectively for the most heinous crime. In terms of the constitutional role of this Court, the impact of the majority's ruling is all the greater because the decision encroaches upon an area squarely within the historic prerogative of the legislative branch—both state and federal—to protect the citizenry through the designation of penalties for prohibitable conduct. It is the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped. Throughout our history, Justices of this Court have emphasized the gravity of decisions invalidating legislative judgments, admonishing the nine men who sit on this bench of the duty of self-restraint, especially when called upon to apply the expansive due process and cruel and unusual punishment rubrics. I can recall no case in which, in the name of deciding constitutional questions, this Court has subordinated national and local democratic processes to such an extent. Before turning to address the thesis of petitioners' case against capital punishment—a thesis that has proved, at least in large measure, persuasive to a majority of this Court— I first will set out the principles that counsel against the Court's sweeping decision. I The Constitution itself poses the first obstacle to petitioners' argument that capital punishment is per se unconstitutional. The relevant provisions are the Fifth, *419 Eighth, and Fourteenth Amendments. The first of these provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor be deprived of life, liberty, or property, without due process of law" Thus, the Federal Government's power was restricted in order to guarantee those charged

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

Government's power was restricted in order to guarantee those charged with crimes that the prosecution would have only a single opportunity to seek imposition of the death penalty and that the death penalty could not be exacted without due process and a grand jury indictment. The Fourteenth Amendment, adopted about 77 years after the Bill of Rights, imposed the due process limitation of the Fifth Amendment upon the ' power to authorize capital punishment. The Eighth Amendment, adopted at the same time as the Fifth, proscribes "cruel and unusual" punishments. In an effort to discern its meaning, much has been written about its history in the opinions of this Court and elsewhere.[3] That history need not be restated here since, whatever punishments the Framers of the Constitution may have intended to prohibit under the "cruel and unusual" language, there cannot be the slightest doubt that they intended no absolute bar on the Government's authority to impose the death penalty. As much is made clear by the three references to capital punishment in the Fifth Amendment. Indeed, the same body that proposed the Eighth Amendment also provided, in the first Crimes Act of 1790, for the death penalty for a number of offenses. Of course, the specific prohibitions within the Bill of Rights are limitations on the exercise of power; they are not an affirmative grant of power to the Government. I, therefore, do not read the several references to capital punishment as foreclosing this Court from considering whether the death penalty in a particular case offends the Eighth and Fourteenth Amendments. Nor are "cruel and unusual punishments" and "due process of law" static concepts whose meaning and scope were sealed at the time of their writing. They were designed to be dynamic and to gain meaning through application to specific circumstances, many of which were not contemplated by their authors. While flexibility in the application of these broad concepts is one of the hallmarks of our system of government, the Court is not free to read into the Constitution a meaning that is plainly at variance with its language. Both the language of the Fifth and Fourteenth Amendments and the history of the Eighth Amendment confirm beyond doubt that the death penalty was considered to be a constitutionally permissible punishment. It is, however, within the historic process of constitutional adjudication to challenge the imposition of the death penalty in some barbaric manner or as a penalty wholly disproportionate to a particular criminal act. And in making such a judgment in a case before it, a court may consider contemporary standards

Justice Blackmun

second_dissenting

Furman v. Georgia

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a case before it, a court may consider contemporary standards to the extent they are relevant. While this weighing of a punishment against the Eighth Amendment standard on a case-by-case basis is consonant with history and precedent, it is not what *421 petitioners demand in these cases. They seek nothing less than the total abolition of capital punishment by judicial fiat. II Petitioners assert that the constitutional issue is an open one uncontrolled by prior decisions of this Court. They view the several cases decided under the Eighth Amendment as assuming the constitutionality of the death penalty without focusing squarely upon the issue. I do not believe that the case law can be so easily cast aside. The Court on numerous occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the issue was whether a particular means of carrying out a capital sentence would be allowed to stand. Each of those decisions necessarily was premised on the assumption that some method of exacting the penalty was permissible. The issue in the first capital case in which the Eighth Amendment was invoked, was whether carrying out a death sentence by public shooting was cruel and unusual punishment. A unanimous Court upheld that form of execution, noting first that the punishment itself, as distinguished from the mode of its infliction, was "not pretended by the counsel of the prisoner" (id., at 137) to be cruel and unusual. The Court went on to hold that: "Cruel and unusual punishments are forbidden by the Constitution, but the authorities are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category" at Eleven years later, in In re the Court again faced a question involving the *422 method of carrying out a capital sentence. On review of a denial of habeas corpus relief by the Supreme Court of New York, this Court was called on to decide whether electrocution, which only very recently had been adopted by the New York Legislature as a means of execution, was impermissibly cruel and unusual in violation of the Fourteenth Amendment.[4] Chief Justice Fuller, speaking for the entire Court, ruled in favor of the State. Electrocution had been selected by the legislature, after careful investigation, as "the most humane and practical method known to modern science of carrying into effect the sentence of death." The Court drew a clear line between the penalty

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

death." The Court drew a clear line between the penalty itself and the mode of its execution: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death *423 is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." at More than 50 years later, in Louisiana ex rel. the Court considered a case in which, due to a mechanical malfunction, Louisiana's initial attempt to electrocute a convicted murderer had failed. Petitioner sought to block a second attempt to execute the sentence on the ground that to do so would constitute cruel and unusual punishment. In the plurality opinion written by Mr. Justice Reed, concurred in by Chief Justice Vinson and Justices Black and Jackson, relief was denied. Again the Court focused on the manner of execution, never questioning the propriety of the death sentence itself. "The case before us does not call for an examination into any punishments except that of death. The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence. ". The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." Mr. Justice Frankfurter, unwilling to dispose of the case under the Eighth Amendment's specific prohibition, approved the second execution attempt under the Due Process Clause. He concluded that "a State may be found to deny a person due process by treating even one guilty of crime in a manner that violates standards of *424 decency more or less universally accepted though not when it treats him by a mode about which opinion is fairly divided." The four dissenting Justices, although finding a second attempt at execution to be impermissibly cruel, expressly recognized the validity of capital punishment: "In determining whether the proposed procedure is unconstitutional, we must measure it against a lawful electrocution. Electrocution, when instantaneous, can be inflicted by a state in conformity with due process of law. "The all-important consideration is that the execution shall be so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself." Each of these cases involved the affirmance of a death sentence where its validity was attacked as violating the Eighth Amendment. Five opinions were written in these three cases, expressing the views of 23 Justices. While in the narrowest sense

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

the views of 23 Justices. While in the narrowest sense it is correct to say that in none was there a frontal attack upon the constitutionality of the death penalty, each opinion went well beyond an unarticulated assumption of validity. The power of the to impose capital punishment was repeatedly and expressly recognized. In addition to these cases in which the constitutionality of the death penalty was a necessary foundation for the decision, those who today would have this Court undertake the absolute abolition of the death penalty also must reject the opinions of other cases stipulating or assuming the constitutionality of capital punishment. 100 ; *425 (White, J., joined by Holmes, J., dissenting).[5] See also 402 U. S., at ; Robinson v. The plurality opinion in is of special interest since it is this opinion, in large measure, that provides the foundation for the present attack on the death penalty.[6] It is anomalous that the standard urged by petitioners—"evolving standards of decency that mark the progress of a maturing society" ()—should be derived from an opinion that so unqualifiedly rejects their arguments. Chief Justice Warren, joined by Justices Black, DOUGLAS, and Whittaker, stated flatly: "At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment —and they are forceful—the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty." at The issue in Trop was whether forfeiture of citizenship was a cruel and unusual punishment when imposed on *426 a wartime deserter who had gone "over the hill" for less than a day and had willingly surrendered. In examining the consequences of the relatively novel punishment of denationalization,[7] Chief Justice Warren drew a line between "traditional" and "unusual" penalties: "While the State has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect." The plurality's repeated disclaimers of any attack on capital punishment itself must be viewed as more than offhand dicta since those views were written in direct response to the strong language in Mr. Justice Frankfurter's dissent arguing that denationalization could not be a disproportionate penalty for a

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

that denationalization could not be a disproportionate penalty for a concededly capital offense.[8] The most recent precedents of this and supra—are also premised to a significant degree on the constitutionality of the death penalty. While the scope of review in both cases was limited to questions involving the procedures for selecting juries *427 and regulating their deliberations in capital cases,[9] those opinions were "singularly academic exercise[s]"[10] if the members of this Court were prepared at those times to find in the Constitution the complete prohibition of the death penalty. This is especially true of Mr. Justice Harlan's opinion for the Court in McGautha, in which, after a full review of the history of capital punishment, he concluded that "we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution."[11] *428 Perhaps enough has been said to demonstrate the unswerving position that this Court has taken in opinions spanning the last hundred years. On virtually every occasion that any opinion has touched on the question of the constitutionality of the death penalty, it has been asserted affirmatively, or tacitly assumed, that the Constitution does not prohibit the penalty. No Justice of the Court, until today, has dissented from this consistent reading of the Constitution. The petitioners in these cases now before the Court cannot fairly avoid the weight of this substantial body of precedent merely by asserting that there is no prior decision precisely in point. Stare decisis, if it is a doctrine founded on principle, surely applies where there exists a long line of cases endorsing or necessarily assuming the validity of a particular matter of constitutional interpretation. Green v. United While these oft-repeated expressions of unchallenged belief in the constitutionality of capital punishment may not justify a summary disposition of the constitutional question before us, they are views expressed and joined in over the years by no less than 29 Justices of this Court and therefore merit the greatest respect.[12] Those who now resolve to set those views aside indeed have a heavy burden. III Petitioners seek to avoid the authority of the foregoing cases, and the weight of express recognition in the Constitution itself, by reasoning which will not withstand analysis. The thesis of petitioners' case derives from several opinions in which members of this Court *429 have recognized the dynamic nature of the prohibition against cruel and unusual punishments. The final meaning of those words was not set in 1791. Rather, to use the words

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

was not set in 1791. Rather, to use the words of Chief Justice Warren speaking for a plurality of the Court in 356 U. S., -101: "[T]he words of the Amendment are not precise, and their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." But this was not new doctrine. It was the approach to the Eighth Amendment taken by Mr. Justice McKenna in his opinion for the Court in Writing for four Justices sitting as the majority of the six-man Court deciding the case, he concluded that the clause must be "progressive"; it is not "fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." The same test was offered by Mr. Justice Frankfurter in his separate concurrence in Louisiana ex rel. While he rejected the notion that the Fourteenth Amendment made the Eighth Amendment fully applicable to the he nonetheless found as a matter of due process that the were prohibited from "treating even one guilty of crime in a manner that violates standards of decency more or less universally accepted." Whether one views the question as one of due process or of cruel and unusual punishment, as I do for convenience in this case, the issue is essentially the same.[13] The fundamental premise upon which either standard is based is that notions of what constitutes cruel and unusual punishment or due process do evolve. *430 Neither the Congress nor any state legislature would today tolerate pillorying, branding, or cropping or nailing of the ears—punishments that were in existence during our colonial era.[14] Should, however, any such punishment be prescribed, the courts would certainly enjoin its execution. See Likewise, no court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives. Similarly, there may well be a process of evolving attitude with respect to the application of the death sentence for particular crimes.[15] See But we are not asked to consider the permissibility of any of the several methods employed in carrying out the death sentence. Nor are we asked, at least as part of the core submission in these cases, to determine whether the penalty might be a grossly excessive punishment for some specific criminal conduct. Either inquiry would call for a discriminating evaluation of particular means, or of the relationship between particular conduct and its punishment. Petitioners' principal argument goes far beyond the traditional process of case-by-case inclusion and exclusion. Instead the

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

the traditional process of case-by-case inclusion and exclusion. Instead the argument insists on an unprecedented constitutional rule of absolute prohibition of capital punishment for any crime, regardless of its depravity and impact on society. In calling for a precipitate and final judicial end to this form of penalty as offensive to evolving standards of decency, petitioners would have this Court abandon the traditional and more refined approach consistently followed in its prior Eighth Amendment precedents. What they are saying, in effect, is that the evolutionary *431 process has come suddenly to an end; that the ultimate wisdom as to the appropriateness of capital punishment under all circumstances, and for all future generations, has somehow been revealed. The prior opinions of this Court point with great clarity to reasons why those of us who sit on this Court at a particular time should act with restraint before assuming, contrary to a century of precedent, that we now know the answer for all time to come. First, where as here, the language of the applicable provision provides great leeway and where the underlying social policies are felt to be of vital importance, the temptation to read personal preference into the Constitution is understandably great. It is too easy to propound our subjective standards of wise policy under the rubric of more or less universally held standards of decency. See 119-120 (Frankfurter, J., dissenting); Louisiana ex rel. -471 ; -379 The second consideration dictating judicial self-restraint arises from a proper recognition of the respective roles of the legislative and judicial branches. The designation of punishments for crimes is a matter peculiarly within the sphere of the state and federal legislative bodies. See, e. g., In re 136 U. S., at ; When asked to encroach on the legislative prerogative we are well counseled to proceed with the utmost reticence. The review of legislative choices, in the performance of our duty to enforce the Constitution, has been characterized most appropriately by Mr. Justice Holmes as "the gravest and most delicate duty that this Court is called on to perform." *432 How much graver is that duty when we are not asked to pass on the constitutionality of a single penalty under the facts of a single case but instead are urged to overturn the legislative judgments of 40 state legislatures as well as those of Congress. In so doing is the majority able to claim, as did the Court in Weems, that it appreciates "to the fullest the wide range of power that the legislature possesses to adapt its penal laws to conditions as

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

legislature possesses to adapt its penal laws to conditions as they may exist and punish the crimes of men according to their forms and frequency"? I think not. No more eloquent statement of the essential separation of powers limitation on our prerogative can be found than the admonition of Mr. Justice Frankfurter, dissenting in Trop. His articulation of the traditional view takes on added significance where the Court undertakes to nullify the legislative judgments of the Congress and four-fifths of the "What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation When the power of Congress to pass a statute is challenged, the function of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a co-ordinate branch of the Government while keeping unto itself—as it must under our constitutional system—the final determination of its own power to act. "Rigorous observance of the difference between limits of power and wise exercise of power—between questions of authority and questions of prudence—requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a *433 disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do." -120. See also Mr. Justice White's dissenting opinion in IV Although determining the range of available punishments for a particular crime is a legislative function, the very presence of the Cruel and Unusual Punishments Clause within the Bill of Rights requires, in the context of a specific case, that courts decide whether particular acts of the Congress offend that Amendment. The Due Process Clause of the Fourteenth Amendment imposes on the judiciary a similar obligation to scrutinize state legislation. But the proper exercise of that constitutional obligation in the

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

But the proper exercise of that constitutional obligation in the cases before us today must be founded on a full recognition of the several considerations set forth above—the affirmative references to capital punishment in the Constitution, the prevailing precedents of this Court, the limitations on the exercise of our power imposed by tested principles of judicial self-restraint, and the duty to avoid encroachment on the powers conferred upon state and federal legislatures. In the face of these considerations, only the most conclusive *434 of objective demonstrations could warrant this Court in holding capital punishment per se unconstitutional. The burden of seeking so sweeping a decision against such formidable obstacles is almost insuperable. Viewed from this perspective, as I believe it must be, the case against the death penalty falls far short. Petitioners' contentions are premised, as indicated above, on the long-accepted view that concepts embodied in the Eighth and Fourteenth Amendments evolve. They present, with skill and persistence, a list of "objective indicators" which are said to demonstrate that prevailing standards of human decency have progressed to the final point of requiring the Court to hold, for all cases and for all time, that capital punishment is unconstitutional. Briefly summarized, these proffered indicia of contemporary standards of decency include the following: (i) a worldwide trend toward the disuse of the death penalty;[16] (ii) the reflection in the scholarly literature of a progressive rejection of capital punishment founded essentially on moral opposition to such treatment;[17] (iii) the decreasing numbers of executions over the last 40 years and especially over the last decade;[18] (iv) the *435 small number of death sentences rendered in relation to the number of cases in which they might have been imposed;[19] and (v) the indication of public abhorrence of *436 the penalty reflected in the circumstances that executions are no longer public affairs.[20] The foregoing is an incomplete summary but it touches the major bases of petitioners' presentation. Although they are not appropriate for consideration as objective evidence, petitioners strongly urge two additional propositions. They contend, first, that the penalty survives public condemnation only through the infrequency, arbitrariness, and discriminatory nature of its application, and second, that there no longer exists any legitimate justification for the utilization of the ultimate penalty. These contentions, which have proved persuasive to several of the Justices constituting the majority, deserve separate consideration and will be considered in the ensuing sections. Before turning to those arguments, I first address the argument based on "objective" factors. Any attempt to discern contemporary standards of decency through the review of objective factors must take into

Justice Blackmun

second_dissenting

Furman v. Georgia

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decency through the review of objective factors must take into account several overriding considerations which petitioners choose to discount or ignore. In a democracy *437 the first indicator of the public's attitude must always be found in the legislative judgments of the people's chosen representatives. MR. JUSTICE MARSHALL'S opinion today catalogues the salient statistics. Forty[21] the District of Columbia, and the Federal Government still authorize the death penalty for a wide variety of crimes. That number has remained relatively static since the end of World War I. Ante, at 339-341. That does not mean, however, that capital punishment has become a forgotten issue in the legislative arena. As recently as January, 1971, Congress approved the death penalty for congressional assassination. 18 U.S. C. 351. In 1965 Congress added the death penalty for presidential and vice presidential assassinations. 18 U.S. C. 1751. Additionally, the aircraft piracy statute passed in 1961 also carries the death penalty. 49 U.S. C. 1472 (i). MR. JUSTICE BLACKMUN'S dissenting opinion catalogues the impressive ease with which each of these statutes was approved. Ante, at 412-413. On the converse side, a bill proposing the abolition of capital punishment for all federal crimes was introduced in but failed to reach the Senate floor.[22] At the state level, New York, among other has recently undertaken reconsideration of its capital crimes. A law passed in 1965 restricted the use of capital punishment to the crimes of murder of a police officer and murder by a person serving a sentence of life imprisonment. N. Y. Penal Code 125.30 I pause here to state that I am at a loss to understand *438 how those urging this Court to pursue a course of absolute abolition as a matter of constitutional judgment can draw any support from the New York experience. As is also the case with respect to recent legislative activity in Canada[23] and Great Britain,[24] New York's decision to restrict the availability of the death penalty is a product of refined and discriminating legislative judgment, reflecting, not the total rejection of capital punishment as inherently cruel, but a desire to limit it to those circumstances in which legislative judgment deems retention to be in the public interest. No such legislative flexibility is permitted by the contrary course petitioners urge this Court to follow.[25] In addition to the New York experience, a number of other have undertaken reconsideration of capital punishment in recent years. In four the penalty has been put to a vote of the people through public referenda—a means likely to supply objective evidence of community standards. In Oregon a

Justice Blackmun

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to supply objective evidence of community standards. In Oregon a referendum seeking abolition of capital punishment failed in 1958 but was subsequently approved in 1964.[26] Two years later the penalty was approved in Colorado by a wide margin.[27]*439 In Massachusetts in in an advisory referendum, the voters there likewise recommended retention of the penalty. In approximately 64% of the voters in Illinois approved the penalty.[28] In addition, the National Commission on Reform of Federal Criminal Laws reports that legislative committees in Massachusetts, Pennsylvania, and Maryland recommended abolition, while committees in New Jersey and Florida recommended retention.[29] The legislative views of other have been summarized by Professor Hugo Bedau in his compilation of sources on capital punishment entitled The Death Penalty in America: "What our legislative representatives think in the two score states which still have the death penalty may be inferred from the fate of the bills to repeal or modify the death penalty filed during recent years in the legislatures of more than half of these states. In about a dozen instances, the bills emerged from committee for a vote. But in none except Delaware did they become law. In those states where these bills were brought to the floor of the legislatures, the vote in most instances wasn't even close."[30] This recent history of activity with respect to legislation concerning the death penalty abundantly refutes the abolitionist position. The second and even more direct source of information *440 reflecting the public's attitude toward capital punishment is the jury. In MR. JUSTICE STEWART, joined by JUSTICES BRENNAN and MARSHALL, characterized the jury's historic function in the sentencing process in the following terms: "[T]he jury is given broad discretion to decide whether or not death is `the proper penalty' in a given case, and a juror's general views about capital punishment play an inevitable role in any such decision. "A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. Guided by neither rule nor standard, a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death." "[O]ne of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the

Justice Blackmun

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hardly reflect `the evolving standards of decency that mark the progress of a maturing society.'"[31] Any attempt to discern, therefore, where the prevailing standards of decency lie must take careful account of *441 the jury's response to the question of capital punishment. During the 1960's juries returned in excess of a thousand death sentences, a rate of approximately two per week. Whether it is true that death sentences were returned in less than 10% of the cases as petitioners estimate or whether some higher percentage is more accurate,[32] these totals simply do not support petitioners' assertion at oral argument that "the death penalty is virtually unanimously repudiated and condemned by the conscience of contemporary society."[33] It is also worthy of note that the annual rate of death sentences has remained relatively constant over the last 10 years and that the figure for —127 sentences—is the highest annual total since 1961.[34] It is true that the sentencing rate might be expected to rise, rather than remain constant, when the number of violent crimes increases as it has in this country.[35] And it may be conceded that the constancy in these statistics indicates the unwillingness of juries to demand the ultimate penalty in many cases where it might be imposed. But these considerations fall short of indicating that juries are imposing the death penalty with such rarity as to justify this Court in reading into this circumstance a public rejection of capital punishment.[36] *442 One must conclude, contrary to petitioners' submission, that the indicators most likely to reflect the public's view—legislative bodies, state referenda and the juries which have the actual responsibility—do not support the contention that evolving standards of decency require total abolition of capital punishment.[37] Indeed, *443 the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess the amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery—not the core—of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function. V Petitioners seek to salvage their thesis by arguing that the infrequency and discriminatory nature of the actual resort to the ultimate penalty tend to diffuse public opposition. We are told that the penalty is imposed exclusively on uninfluential minorities—"the poor and powerless, personally ugly and socially unacceptable."[38] It is urged that this pattern of application assures that large segments of the public will

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of application assures that large segments of the public will be either uninformed or unconcerned and will have no reason to measure the punishment against prevailing moral standards. Implicitly, this argument concedes the unsoundness of petitioners' contention, examined above under Part IV, that objective evidence shows a present and widespread community rejection of the death penalty. It is now said, *444 in effect, not that capital punishment presently offends our citizenry, but that the public would be offended if the penalty were enforced in a nondiscriminatory manner against a significant percentage of those charged with capital crimes, and if the public were thereby made aware of the moral issues surrounding capital punishment. Rather than merely registering the objective indicators on a judicial balance, we are asked ultimately to rest a far-reaching constitutional determination on a prediction regarding the subjective judgments of the mass of our people under hypothetical assumptions that may or may not be realistic. Apart from the impermissibility of basing a constitutional judgment of this magnitude on such speculative assumptions, the argument suffers from other defects. If, as petitioners urge, we are to engage in speculation, it is not at all certain that the public would experience deep-felt revulsion if the were to execute as many sentenced capital offenders this year as they executed in the mid-1930's.[39] It seems more likely that public reaction, rather than being characterized by undifferentiated rejection, would depend upon the facts and circumstances surrounding each particular case. Members of this Court know, from the petitions and appeals that come before us regularly, that brutish and revolting murders continue to occur with disquieting frequency. Indeed, murders are so commonplace *445 in our society that only the most sensational receive significant and sustained publicity. It could hardly be suggested that in any of these highly publicized murder cases—the several senseless assassinations or the too numerous shocking multiple murders that have stained this country's recent history—the public has exhibited any signs of "revulsion" at the thought of executing the convicted murderers. The public outcry, as we all know, has been quite to the contrary. Furthermore, there is little reason to suspect that the public's reaction would differ significantly in response to other less publicized murders. It is certainly arguable that many such murders, because of their senselessness or barbarousness, would evoke a public demand for the death penalty rather than a public rejection of that alternative. Nor is there any rational basis for arguing that the public reaction to any of these crimes would be muted if the murderer were "rich and powerful." The demand for

Justice Blackmun

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if the murderer were "rich and powerful." The demand for the ultimate sanction might well be greater, as a wealthy killer is hardly a sympathetic figure. While there might be specific cases in which capital punishment would be regarded as excessive and shocking to the conscience of the community, it can hardly be argued that the public's dissatisfaction with the penalty in particular cases would translate into a demand for absolute abolition. In pursuing the foregoing speculation, I do not suggest that it is relevant to the appropriate disposition of these cases. The purpose of the digression is to indicate that judicial decisions cannot be founded on such speculations and assumptions, however appealing they may seem. But the discrimination argument does not rest alone on a projection of the assumed effect on public opinion of more frequent executions. Much also is made of the undeniable fact that the death penalty has a greater impact on the lower economic strata of society, which *446 include a relatively higher percentage of persons of minority racial and ethnic group backgrounds. The argument drawn from this fact is two-pronged. In part it is merely an extension of the speculative approach pursued by petitioners, i. e., that public revulsion is suppressed in callous apathy because the penalty does not affect persons from the white middle class which constitutes the majority in this country. This aspect, however, adds little to the infrequency rationalization for public apathy which I have found unpersuasive. As MR. JUSTICE MARSHALL'S opinion today demonstrates, the argument does have a more troubling aspect. It is his contention that if the average citizen were aware of the disproportionate burden of capital punishment borne by the "poor, the ignorant, and the underprivileged," he would find the penalty "shocking to his conscience and sense of justice" and would not stand for its further use. Ante, at 365-366, 369. This argument, like the apathy rationale, calls for further speculation on the part of the Court. It also illuminates the quicksands upon which we are asked to base this decision. Indeed, the two contentions seem to require contradictory assumptions regarding the public's moral attitude toward capital punishment. The apathy argument is predicated on the assumption that the penalty is used against the less influential elements of society, that the public is fully aware of this, and that it tolerates use of capital punishment only because of a callous indifference to the offenders who are sentenced. MR. JUSTICE MARSHALL'S argument, on the other hand, rests on the contrary assumption that the public does not know against whom the penalty

Justice Blackmun

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that the public does not know against whom the penalty is enforced and that if the public were educated to this fact it would find the punishment intolerable. Ante, at 369. Neither assumption can claim to be an entirely accurate portrayal of public attitude; for some acceptance of capital punishment might be a consequence * of hardened apathy based on the knowledge of infrequent and uneven application, while for others acceptance may grow only out of ignorance. More significantly, however, neither supposition acknowledges what, for me, is a more basic flaw. Certainly the claim is justified that this criminal sanction falls more heavily on the relatively impoverished and underprivileged elements of society. The "have-nots" in every society always have been subject to greater pressure to commit crimes and to fewer constraints than their more affluent fellow citizens. This is, indeed, a tragic byproduct of social and economic deprivation, but it is not an argument of constitutional proportions under the Eighth or Fourteenth Amendment. The same discriminatory impact argument could be made with equal force and logic with respect to those sentenced to prison terms. The Due Process Clause admits of no distinction between the deprivation of "life" and the deprivation of "liberty." If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of the prescribed penalties for crimes of violence. The root causes of the higher incidence of criminal penalties on "minorities and the poor" will not be cured by abolishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sanctions were abolished or ameliorated because most of those who commit crimes happen to be underprivileged. The basic problem results not from the penalties imposed for criminal conduct but from social and economic factors that have plagued humanity since the beginning of recorded history, frustrating all efforts to create in any country at any time the perfect society in which there are no "poor," no "minorities" and no "underprivileged."[40]*448 The causes underlying this problem are unrelated to the constitutional issue before the Court. Finally, yet another theory for abolishing the death penalty—reflected in varying degrees in each of the concurring opinions today—is predicated on the discriminatory impact argument. Quite apart from measuring the public's acceptance or rejection of the death penalty under the "standards of decency" rationale, MR. JUSTICE DOUGLAS finds the punishment cruel and unusual because it is "arbitrarily" invoked. He finds that "the basic theme of equal protection is implicit" in the Eighth Amendment, and that the Amendment is violated when jury sentencing may be characterized

Justice Blackmun

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the Amendment is violated when jury sentencing may be characterized as arbitrary or discriminatory. Ante, at 249. While MR. JUSTICE STEWART does not purport to rely on notions of equal protection, he also rests primarily on what he views to be a history of arbitrariness. Ante, at 309-310.[41] Whatever may be the facts with respect to jury sentencing, this argument calls for a reconsideration of the "standards" aspects of the Court's decision in Although that is the unmistakable thrust of these opinions today, I see no reason to reassess the standards question considered so carefully in Mr. Justice Harlan's opinion for the Court *449 last Term. Having so recently reaffirmed our historic dedication to entrusting the sentencing function to the jury's "untrammeled discretion" (id., ), it is difficult to see how the Court can now hold the entire process constitutionally defective under the Eighth Amendment. For all of these reasons I find little merit in the various discrimination arguments, at least in the several lights in which they have been cast in these cases. Although not presented by any of the petitioners today, a different argument, premised on the Equal Protection Clause, might well be made. If a Negro defendant, for instance, could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense, a constitutional violation might be established. This was the contention made in vacated and remanded on other grounds, in which the Eighth Circuit was asked to issue a writ of habeas corpus setting aside a death sentence imposed on a Negro defendant convicted of rape. In that case substantial statistical evidence was introduced tending to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South. That evidence was not excluded but was found to be insufficient to show discrimination in sentencing in Maxwell's trial. MR. JUSTICE BLACKMUN, then sitting on the Court of Appeals for the Eighth Circuit. concluded: "The petitioner's argument is an interesting one and we are not disposed to say that it could not have some validity and weight in certain situations. Like the trial court, however we feel that the argument does not have validity and pertinent application to Maxwell's case. *450 "We are not yet ready to condemn and upset the result reached in every case of a Negro rape defendant in the State of Arkansas on the basis of broad theories of social and statistical injustice. "We do not say that there is no ground for suspicion

Justice Blackmun

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do not say that there is no ground for suspicion that the death penalty for rape may have been discriminatorily applied over the decades in that large area of states whose statutes provide for it. There are recognizable indicators of this. But improper state practice of the past does not automatically invalidate a procedure of the present." I agree that discriminatory application of the death penalty in the past, admittedly indefensible, is no justification for holding today that capital punishment is invalid in all cases in which sentences were handed out to members of the class discriminated against. But Maxwell does point the way to a means of raising the equal protection challenge that is more consonant with precedent and the Constitution's mandates than the several courses pursued by today's concurring opinions. A final comment on the racial discrimination problem seems appropriate. The possibility of racial bias in the trial and sentencing process has diminished in recent years. The segregation of our society in decades past, which contributed substantially to the severity of punishment for interracial crimes, is now no longer prevalent in this country. Likewise, the day is past when juries do not represent the minority group elements of the community. The assurance of fair trials for all citizens is greater today than at any previous time in our history. Because standards of criminal justice have "evolved" in a manner favorable to the accused, discriminatory imposition of capital punishment is far less likely today than in the past. *451 Petitioner in Branch v. Texas, No. 69-5031, and to a lesser extent the petitioners in the other cases before us today, urge that capital punishment is cruel and unusual because it no longer serves any rational legislative interests. Before turning to consider whether any of the traditional aims of punishment justify the death penalty, I should make clear the context in which I approach this aspect of the cases. First, I find no support—in the language of the Constitution, in its history, or in the cases arising under it—for the view that this Court may invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of penology. While the cases affirm our authority to prohibit punishments that are cruelly inhumane (e. g., U. S., at ; In re 136 U. S., at ), and punishments that are cruelly excessive in that they are disproportionate to particular crimes (see Part I, infra), the precedents of this Court afford no basis for striking down a particular form of punishment because we may be persuaded that means

Justice Blackmun

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Furman v. Georgia

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form of punishment because we may be persuaded that means less stringent would be equally efficacious. Secondly, if we were free to question the justifications for the use of capital punishment, a heavy burden would rest on those who attack the legislatures' judgments to prove the lack of rational justifications. This Court has long held that legislative decisions in this area, which lie within the special competency of that branch, are entitled to a presumption of validity. See, e. g., ; Louisiana ex rel. ; -379; In re *452 I come now to consider, subject to the reservations above expressed, the two justifications most often cited for the retention of capital punishment. The concept of retribution—though popular for centuries—is now criticized as unworthy of a civilized people. Yet this Court has acknowledged the existence of a retributive element in criminal sanctions and has never heretofore found it impermissible. In Mr. Justice Black stated that, "Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." at It is clear, however, that the Court did not reject retribution altogether. The record in that case indicated that one of the reasons why the trial judge imposed the death penalty was his sense of revulsion at the "shocking details of the crime." Although his motivation was clearly retributive, the Court upheld the trial judge's sentence.[42] Similarly, MR. JUSTICE MARSHALL noted in his plurality opinion in that this Court "has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects."[43] *453 While retribution alone may seem an unworthy justification in a moral sense, its utility in a system of criminal justice requiring public support has long been recognized. Lord Justice Denning, now Master of the Rolls of the Court of Appeal in England, testified on this subject before the British Royal Commission on Capital Punishment: "Many are inclined to test the efficacy of punishment solely by its value as a deterrent: but this is too narrow a view. Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. If this were so, we should not send to prison a man who was guilty of motor manslaughter, but

Justice Blackmun

second_dissenting

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prison a man who was guilty of motor manslaughter, but only disqualify him from driving; but would public opinion be content with this? The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not."[44] The view expressed by Lord Denning was cited approvingly in the Royal Commission's Report, recognizing "a *454 strong and widespread demand for retribution."[45] MR. JUSTICE STEWART makes much the same point in his opinion today when he concludes that expression of man's retributive instincts in the sentencing process "serves an important purpose in promoting the stability of a society governed by law." Ante, at 308. The view, moreover, is not without respectable support in the jurisprudential literature in this country,[46] despite a substantial body of opinion to the contrary.[47] And it is conceded on all sides that, not infrequently, cases arise that are so shocking or offensive that the public demands the ultimate penalty for the transgressor. Deterrence is a more appealing justification, although opinions again differ widely. Indeed, the deterrence issue lies at the heart of much of the debate between the abolitionists and retentionists.[48] Statistical studies, based primarily on trends in that have abolished the penalty, tend to support the view that the death penalty has not been proved to be a superior deterrent.[49] Some dispute the validity of this conclusion,[50] pointing *455 out that the studies do not show that the death penalty has no deterrent effect on any categories of crimes. On the basis of the literature and studies currently available, I find myself in agreement with the conclusions drawn by the Royal Commission following its exhaustive study of this issue: "The general conclusion which we reach, after careful review of all the evidence we have been able to obtain as to the deterrent effect of capital punishment, may be stated as follows. Prima facie the penalty of death is likely to have a stronger effect as a deterrent to normal human beings than any other form of punishment, and there is some evidence (though no convincing statistical evidence) that this is in fact so. But this effect does not operate universally or uniformly, and there are many offenders on whom it is limited and may often be negligible. It is accordingly important to view this question in a just perspective and not base a penal policy in relation to murder on exaggerated estimates of the uniquely deterrent force of the death penalty."[51] Only recently this Court was called on to consider the deterrence

Justice Blackmun

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recently this Court was called on to consider the deterrence argument in relation to punishment by fines for public drunkenness. The Court was unwilling to strike down the Texas statute on grounds that it lacked a rational foundation. What MR. JUSTICE MARSHALL said there would seem to have equal applicability in this case: "The long-standing and still raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear conclusions to permit it to be said that such sanctions are ineffective in any particular context or for any *456 particular group of people who are able to appreciate the consequences of their acts." As I noted at the outset of this section, legislative judgments as to the efficacy of particular punishments are presumptively rational and may not be struck down under the Eighth Amendment because this Court may think that some alternative sanction would be more appropriate. Even if such judgments were within the judicial prerogative, petitioners have failed to show that there exist no justifications for the legislative enactments challenged in these cases.[52] While the evidence and arguments advanced by petitioners might have proved profoundly persuasive if addressed to a legislative body, they do not approach the showing traditionally required before a court declares that the legislature has acted irrationally. I In two of the cases before us today juries imposed sentences of death after convictions for rape.[53] In these cases we are urged to hold that even if capital punishment is permissible for some crimes, it is a cruel and unusual punishment for this crime. Petitioners in these cases rely on the Court's opinions holding that the Eighth Amendment, in addition to prohibiting punishments *457 deemed barbarous and inhumane, also condemns punishments that are greatly disproportionate to the crime charged. This reading of the Amendment was first expressed by Mr. Justice Field in his dissenting opinion in a case in which a defendant charged with a large number of violations of Vermont's liquor laws received a fine in excess of $6,600, or a 54-year jail sentence if the fine was not paid. The majority refused to consider the question on the ground that the Eighth Amendment did not apply to the The dissent, after carefully examining the history of that Amendment and the Fourteenth, concluded that its prohibition was binding on Vermont and that it was directed against "all punishments which by their excessive length or severity are greatly disproportioned to the offences charged."[54] The Court, in adopted Mr. Justice Field's view. The defendant, in Weems, charged with falsifying Government documents, had

Justice Blackmun

second_dissenting

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The defendant, in Weems, charged with falsifying Government documents, had been sentenced to serve 15 years in cadena temporal, a punishment which included carrying chains at the wrists and ankles and the perpetual loss of the right to vote and hold office. Finding the sentence grossly excessive in length and condition of imprisonment, the Court struck it down. This notion of disproportionality—that particular sentences may be cruelly excessive for particular crimes—has been cited with approval in more recent decisions of this Court. See Robinson v. ; 356 U. S., ; see also These cases, while providing a rationale for gauging the constitutionality of capital sentences imposed for rape, *458 also indicate the existence of necessary limitations on the judicial function. The use of limiting terms in the various expressions of this test found in the opinions—grossly excessive, greatly disproportionate—emphasizes that the Court's power to strike down punishments as excessive must be exercised with the greatest circumspection. As I have noted earlier, nothing in the history of the Cruel and Unusual Punishments Clause indicates that it may properly be utilized by the judiciary to strike down punishments—authorized by legislatures and imposed by juries—in any but the extraordinary case. This Court is not empowered to sit as a court of sentencing review, implementing the personal views of its members on the proper role of penology. To do so is to usurp a function committed to the Legislative Branch and beyond the power and competency of this Court. Operating within these narrow limits, I find it quite impossible to declare the death sentence grossly excessive for all rapes. Rape is widely recognized as among the most serious of violent crimes, as witnessed by the very fact that it is punishable by death in 16 and by life imprisonment in most other[55] The several reasons why rape stands so high on the list of serious crimes are well known: It is widely viewed as the most atrocious of intrusions upon the privacy and dignity of the victim; never is the crime committed accidentally; rarely can it be said to be unpremeditated; *459 often the victim suffers serious physical injury; the psychological impact can often be as great as the physical consequences; in a real sense, the threat of both types of injury is always present.[56] For these reasons, and for the reasons arguing against abolition of the death penalty altogether, the excessiveness rationale provides no basis for rejection of the penalty for rape in all cases. The argument that the death penalty for rape lacks rational justification because less severe punishments might be viewed

Justice Blackmun

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lacks rational justification because less severe punishments might be viewed as accomplishing the proper goals of penology is as inapposite here as it was in considering per se abolition. See Part The state of knowledge with respect to the deterrent value of the sentence for this crime is inconclusive.[57] Moreover, what has been said about the concept of retribution applies with equal force where the crime is rape. There are many cases in which the sordid, heinous nature of a particular crime, demeaning, humiliating, and often physically or psychologically traumatic, will call for public condemnation. In a period in our country's history when the frequency of this crime is increasing alarmingly,[58] it is indeed a grave event for the Court to take from the whatever deterrent and retributive weight the death penalty retains. Other less sweeping applications of the disproportionality concept have been suggested. Recently the Fourth Circuit struck down a death sentence in holding that the death penalty was an appropriate punishment for rape *460 only where life is "endangered." Chief Judge Haynsworth, who joined in the panel's opinion, wrote separately in denying the State of Maryland's petition for rehearing in order to make clear the basis for his joinder. He stated that, for him, the appropriate test was not whether life was endangered, but whether the victim in fact suffered "grievous physical or psychological harm." See It seems to me that both of these tests depart from established principles and also raise serious practical problems. How are those cases in which the victim's life is endangered to be distinguished from those in which no danger is found? The threat of serious injury is implicit in the definition of rape; the victim is either forced into submission by physical violence or by the threat of violence. Certainly that test would provide little comfort for either of the rape defendants in the cases presently before us. Both criminal acts were accomplished only after a violent struggle. Petitioner Jackson held a scissors blade against his victim's neck. Petitioner Branch had less difficulty subduing his 65-year-old victim. Both assailants threatened to kill their victims. See MR. JUSTICE DOUGLAS' opinion, ante, at 252-253. The alternate test, limiting the penalty to cases in which the victim suffers physical or emotional harm, might present even greater problems of application. While most physical effects may be seen and objectively measured, the emotional impact may be impossible to gauge at any particular point in time. The extent and duration of psychological trauma may not be known or ascertainable prior to the date of trial. While I reject

Justice Blackmun

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ascertainable prior to the date of trial. While I reject each of these attempts to establish specific categories of cases in which the death penalty may be deemed excessive, I view them as groping *461 toward what is for me the appropriate application of the Eighth Amendment. While in my view the disproportionality test may not be used either to strike down the death penalty for rape altogether or to install the Court as a tribunal for sentencing review, that test may find its application in the peculiar circumstances of specific cases. Its utilization should be limited to the rare case in which the death penalty is rendered for a crime technically falling within the legislatively defined class but factually falling outside the likely legislative intent in creating the category. Specific rape cases (and specific homicides as well) can be imagined in which the conduct of the accused would render the ultimate penalty a grossly excessive punishment. Although this case-by-case approach may seem painfully slow and inadequate to those who wish the Court to assume an activist legislative role in reforming criminal punishments, it is the approach dictated both by our prior opinions and by a due recognition of the limitations of judicial power. This approach, rather than the majority's more pervasive and less refined judgment, marks for me the appropriate course under the Eighth Amendment. II I now return to the overriding question in these cases: whether this Court, acting in conformity with the Constitution, can justify its judgment to abolish capital punishment as heretofore known in this country. It is important to keep in focus the enormity of the step undertaken by the Court today. Not only does it invalidate hundreds of state and federal laws, it deprives those jurisdictions of the power to legislate with respect to capital punishment in the future, except in a manner consistent with the cloudily outlined views of those Justices who do not purport to undertake total abolition. *462 Nothing short of an amendment to the United Constitution can reverse the Court's judgments. Meanwhile, all flexibility is foreclosed. The normal democratic process, as well as the opportunities for the several to respond to the will of their people expressed through ballot referenda (as in Massachusetts, Illinois, and Colorado),[59] is now shut off. The sobering disadvantage of constitutional adjudication of this magnitude is the universality and permanence of the judgment. The enduring merit of legislative action is its responsiveness to the democratic process, and to revision and change: mistaken judgments may be corrected and refinements perfected. In England[60] and Canada[61] critical choices were

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

and refinements perfected. In England[60] and Canada[61] critical choices were made after studies canvassing all competing views, and in those countries revisions may be made in light of experience.[62] As recently as a presidential commission did consider, as part of an overall study of crime in this country, whether the death penalty should be abolished. *463 The commission's unanimous recommendation was as follows: "The question whether capital punishment is an appropriate sanction is a policy decision to be made by each State. Where it is retained, the types of offenses for which it is available should be strictly limited, and the law should be enforced in an even-handed and nondiscriminatory manner, with procedures for review of death sentences that are fair and expeditious. When a State finds that it cannot administer the penalty in such a manner, or that the death penalty is being imposed but not carried into effect, the penalty should be abandoned."[63] The thrust of the Commission's recommendation, as presently relevant, is that this question "is a policy decision to be made by each State." There is no hint that this decision could or should be made by the judicial branch. The National Commission on Reform of Federal Criminal Laws also considered the capital punishment issue. The introductory commentary of its final report states that "a sharp division [existed] within the Commission on the subject of capital punishment," although a *464 majority favored its abolition.[64] Again, consideration of the question was directed to the propriety of retention or abolition as a legislative matter. There was no suggestion that the difference of opinion existing among commission members, and generally across the country, could or should be resolved in one stroke by a decision of this Court.[65] Similar activity was, before today, evident at the state level with re-evaluation having been undertaken by special legislative committees in some and by public ballot in others.[66] With deference and respect for the views of the Justices who differ, it seems to me that all these studies—both in this country and elsewhere—suggest that, as a matter of policy and precedent, this is a classic case for the exercise of our oft-announced allegiance to judicial restraint. I know of no case in which greater gravity and delicacy have attached to the duty that this Court is called on to perform whenever legislation—state or federal—is challenged on constitutional grounds.[67] It seems to me that the sweeping judicial action undertaken today reflects a *465 basic lack of faith and confidence in the democratic process. Many may regret, as I do, the failure of some legislative

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

may regret, as I do, the failure of some legislative bodies to address the capital punishment issue with greater frankness or effectiveness. Many might decry their failure either to abolish the penalty entirely or selectively, or to establish standards for its enforcement. But impatience with the slowness, and even the unresponsiveness, of legislatures is no justification for judicial intrusion upon their historic powers. Rarely has there been a more appropriate opportunity for this Court to heed the philosophy of Mr. Justice Oliver Wendell Holmes. As Mr. Justice Frankfurter reminded the Court in Trop: "[T]he whole of [Mr. Justice Holmes'] work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment." MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE POWELL join, dissenting. The Court's judgments today strike down a penalty that our Nation's legislators have thought necessary since our country was founded. My Brothers DOUGLAS, BRENNAN, and MARSHALL would at one fell swoop invalidate laws enacted by Congress and 40 of the 50 state legislatures, and would consign to the limbo of unconstitutionality under a single rubric penalties for offenses as varied and unique as murder, piracy, mutiny, highjacking, and desertion in the face of the enemy. My Brothers STEWART and WHITE, asserting reliance on a more limited rationale—the reluctance of judges and juries actually to impose the death penalty in the majority of capital *466 cases—join in the judgments in these cases. Whatever its precise rationale, today's holding necessarily brings into sharp relief the fundamental question of the role of judicial review in a democratic society. How can government by the elected representatives of the people co-exist with the power of the federal judiciary, whose members are constitutionally insulated from responsiveness to the popular will, to declare invalid laws duly enacted by the popular branches of government? The answer, of course, is found in Hamilton's Federalist Paper No. 78 and in Chief Justice Marshall's classic opinion in An oft-told story since then, it bears summarization once more. Sovereignty resides ultimately in the people as a whole and, by adopting through their a written Constitution for the Nation and subsequently adding amendments to that instrument, they have both granted certain powers to the National Government, and denied other powers to the National and the State Governments. Courts are exercising no more than the judicial function conferred

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

Courts are exercising no more than the judicial function conferred upon them by Art. III of the Constitution when they assess, in a case before them, whether or not a particular legislative enactment is within the authority granted by the Constitution to the enacting body, and whether it runs afoul of some limitation placed by the Constitution on the authority of that body. For the theory is that the people themselves have spoken in the Constitution, and therefore its commands are superior to the commands of the legislature, which is merely an agent of the people. The Founding Fathers thus wisely sought to have the best of both worlds, the undeniable benefits of both democratic self-government and individual rights protected against possible excesses of that form of government. The courts in cases properly before them have been entrusted under the Constitution with the last word, short of constitutional amendment, as to whether a law passed *467 by the legislature conforms to the Constitution. But just because courts in general, and this Court in particular, do have the last word, the admonition of Mr. Justice Stone dissenting in United v. Butler must be constantly borne in mind: "[W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint." Rigorous attention to the limits of this Court's authority is likewise enjoined because of the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others. Judges differ only in that they have the power, if not the authority, to enforce their desires. This is doubtless why nearly two centuries of judicial precedent from this Court counsel the sparing use of that power. The most expansive reading of the leading constitutional cases does not remotely suggest that this Court has been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court. The Framers of the Constitution would doubtless have agreed with the great English political philosopher John Stuart Mill when he observed: "The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power." On Liberty 28 (1885). *468 A separate reason for deference to the legislative judgment is the consequence of human error on the part of the judiciary with respect to the constitutional issue before it. Human error there is bound to be, judges being men and women, and men and women being what they are. But an error in mistakenly sustaining the constitutionality of a particular enactment, while wrongfully depriving the individual of a right secured to him by the Constitution, nonetheless does so by simply letting stand a duly enacted law of a democratically chosen legislative body. The error resulting from a mistaken upholding of an individual's constitutional claim against the validity of a legislative enactment is a good deal more serious. For the result in such a case is not to leave standing a law duly enacted by a representative assembly, but to impose upon the Nation the judicial fiat of a majority of a court of judges whose connection with the popular will is remote at best. The task of judging constitutional cases imposed by Art. III cannot for this reason be avoided, but it must surely be approached with the deepest humility and genuine deference to legislative judgment. Today's decision to invalidate capital punishment is, I respectfully submit, significantly lacking in those attributes. For the reasons well stated in the opinions of THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE POWELL, I conclude that this decision holding unconstitutional capital punishment is not an act of judgment, but rather an act of will. It completely ignores the strictures of Mr. Justice Holmes, writing more than 40 years ago in Baldwin v. Missouri: "I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the As the decisions now stand, I see hardly *469 any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words `due process of law,' if taken in their literal meaning, have no

Justice Blackmun

second_dissenting

Furman v. Georgia

https://www.courtlistener.com/opinion/108605/furman-v-georgia/

of law,' if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the may pass." More than 20 years ago, Justice Jackson made a similar observation with respect to this Court's restriction of the in the enforcement of their own criminal laws: "The use of the due process clause to disable the in protection of society from crime is quite as dangerous and delicate a use of federal judicial power as to use it to disable them from social or economic experimentation." If there can be said to be one dominant theme in the Constitution, perhaps more fully articulated in the Federalist Papers than in the instrument itself, it is the notion of checks and balances. The Framers were well aware of the natural desire of office holders as well as others to seek to expand the scope and authority of their *470 particular office at the expense of others. They sought to provide against success in such efforts by erecting adequate checks and balances in the form of grants of authority to each branch of the government in order to counteract and prevent usurpation on the part of the others. This philosophy of the Framers is best described by one of the ablest and greatest of their number, James Madison, in Federalist No. 51: "In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to control itself." Madison's observation applies to the Judicial Branch with at least as much force as to the Legislative and Executive Branches. While overreaching by the Legislative and Executive Branches may result in the sacrifice of individual protections that the Constitution was designed to secure against action of the State, judicial over-reaching may result in sacrifice of the equally important right of the people to govern themselves. The Due Process and Equal Protection Clauses of the Fourteenth Amendment were "never intended to destroy the ' power to govern themselves." Black, J., in The very nature of judicial review, as pointed out by Justice Stone in his dissent in

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

“In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.” United States v. American Trucking Inc., Instead of adhering to the Legislature’s design, the Court today adopts an interpretation of the Copyright Act at odds with Congress’ aim to protect copyright owners against the unauthorized importation of low-priced, foreign­ made copies of their copyrighted works. The Court’s bold departure from Congress’ design is all the more stunning, for it places the United States at the vanguard of the movement for “international exhaustion” of copyrights—a movement the United States has steadfastly resisted on the world stage. To justify a holding that shrinks to insignificance copy­ right protection against the unauthorized importation of foreign-made copies, the Court identifies several “practical problems.” Ante, The Court’s parade of horribles, however, is largely imaginary. Congress’ objective in enacting 17 U.S. C. importation prohibition can be honored without generating the absurd conse­ quences hypothesized in the Court’s opinion. I dissent 2 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting from the Court’s embrace of “international exhaustion,” and would affirm the sound judgment of the Court of Appeals. I Because economic conditions and demand for particular goods vary across the globe, copyright owners have a financial incentive to charge different prices for copies of their works in different geographic regions. Their ability to engage in such price discrimination, however, is under­ mined if arbitrageurs are permitted to import copies from low-price regions and sell them in high-price regions. The question in this case is whether the unauthorized importation of foreign-made copies constitutes copyright infringement under U. S. law. To answer this question, one must examine three provi­ sions of Title 17 of the U. S. Code: 109(a), and 602(a)(1). Section 106 sets forth the “exclusive rights” of a copyright owner, including the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” This distribution right is limited by which provides: “Notwithstanding the provisions of section 106(3), the owner of a particular copy or phono- record lawfully made under this title is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” Section 109(a) codifies the “first sale doc­ trine,” a doctrine articulated in Bobbs-Merrill Co. v. Straus, which held that a copyright owner could not control the price at which re­ tailers sold lawfully purchased copies of its work.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

which re­ tailers sold lawfully purchased copies of its work. The first sale doctrine recognizes that a copyright owner should not be permitted to exercise perpetual control over the distribution of copies of a copyrighted work. At some point—ordinarily the time of the first commercial sale— Cite as: 568 U. S. (2013) 3 GINSBURG, J., dissenting the copyright owner’s exclusive right under to control the distribution of a particular copy is exhausted, and from that point forward, the copy can be resold or otherwise redistributed without the copyright owner’s authorization. Section 602(a)(1) (2006 ed., Supp. V)1—last, but most critical, of the three copyright provisions bearing on this case—is an importation ban. It reads: “Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringe- ment of the exclusive right to distribute copies or phonorecords under section 106, actionable under sec­ tion 501.” In Quality Distributors, the Court held that a copyright owner’s right to control importation under is a component of the distribution right set forth in and is therefore subject to codification of the first sale doctrine. Quality thus held that the importation of copies made in the United States but sold abroad did not rank as copyright infringement under at See also (GINSBURG, J., concurring) (Quality “involve[d] a ‘round trip’ journey, travel of the copies in question from the United States to places abroad, then back again”).2 —————— 1 In 2008, Congress renumbered what was previously as See Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PROIPA), Like the Court, I refer to the provision by its current numbering. 2 Although JUSTICE KAGAN’s concurrence suggests that Quality erred in “holding that limits” ante, that recent, unanimous holding must be taken as a given. See John R. Sand & Gravel (“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress 4 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Important to the Court’s holding, the copies at issue in Quality had been “ ‘lawfully made under [Title 17]’ ”—a prerequisite for application of n. 9 (quoting ). Section 602(a)(1), the Court noted, would apply to “copies that were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” Drawing on an example discussed during a 1964 public meeting on pro­ posed revisions to the U. S. copyright laws,3 the Court stated: “If the author of [a] work gave the exclusive United States

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

the author of [a] work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the pub­ lisher of the British edition, presumably only those [copies] made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a de­ fense to an action under )). The Court’s objective in this case should be to avoid unduly “constrict[ing] the scope of ban on unauthorized importation,” ante, at 1 (opinion of KAGAN, J.), while at the same time remaining faithful to Quality ’s holding and to the text and history of other Copyright Act provisions. This aim is not difficult to achieve. See Parts II–V, infra. JUSTICE KAGAN and I appear to agree to this extent: Congress meant the ban on unauthorized importation to have real force. See ante, at 3 (acknowl­ edging that “Wiley may have a point about what was de­ signed to do”). 3 See Quality Distributors, Inc. v. L’anza Research Int’l, Inc., 5 U.S. 148, n. 20 (quoting Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 119 (H. R. Judiciary Comm. Print 1964) (hereinafter Copyright Law Revision Part 4) (statement of Harriet Pilpel)). Cite as: 568 U. S. (2013) 5 GINSBURG, J., dissenting to an action under if there was a distribution of the copies).” As the District Court and the Court of Appeals concluded, see ; App. to Pet. for Cert. 70a–73a, application of the Quality analysis to the facts of this case would preclude any invocation of Petitioner Supap Kirtsaeng imported and then sold at a profit over 600 copies of copyrighted textbooks printed outside the United States by the Asian subsidiary of respondent John Wiley & Sons, Inc. (Wiley). App. 29– 34. See also ante, at 3–5 (opinion of the Court). In the words the Court used in Quality these copies “were ‘lawfully made’ not under the United States Copyright Act, but instead, under the law of some other country.” 5 U.S., Section 109(a) therefore does not ap- ply, and Kirtsaeng’s unauthorized importation constitutes copyright infringement under The Court does not deny that under the language I have quoted from Quality Wiley would prevail. Ante, at 27. Nevertheless, the Court dismisses this language, to which all Members of the Quality Court subscribed, as ill-considered dictum. Ante,

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

Members of the Quality Court subscribed, as ill-considered dictum. Ante, 7–28. I agree that the discussion was dictum in the sense that it was not essen­ tial to the Court’s judgment. See Quality 5 U.S., (GINSBURG, J., concurring) (“[W]e do not today resolve cases in which the allegedly infringing imports were manufactured abroad.”). But I disagree with the Court’s conclusion that this dictum was ill considered. Instead, for the reasons explained below, I would hold, consistently with Quality ’s dictum, that authorizes a copyright owner to bar the importation of a copy manufactured abroad for sale abroad. II The text of the Copyright Act demonstrates that Con­ gress intended to provide copyright owners with a potent 6 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting remedy against the importation of foreign-made copies of their copyrighted works. As the Court recognizes, ante, at 3, this case turns on the meaning of the phrase “lawfully made under this title” in In my view, that phrase is most sensibly read as referring to instances in which a copy’s creation is governed by, and conducted in compli­ ance with, Title 17 of the U. S. Code. This reading is consistent with the Court’s interpretation of similar lan­ guage in other statutes. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc., (“under” in 11 U.S. C. a Bankruptcy Code provi­ sion exempting certain asset transfers from stamp taxes, means “pursuant to”); (1991) (the phrase “under section 554” in the Equal Access to Justice Act means “subject to” or “governed by” 5 U.S. C. (internal quotation marks omitted)). It also accords with dictionary definitions of the word “under.” See, e.g., American Heritage Dictionary 1887 (“under” means, among other things, “[s]ubject to the authority, rule, or control of ”). Section 109(a), properly read, affords Kirtsaeng no defense against Wiley’s claim of copyright infringement. The Copyright Act, it has been observed time and again, does not apply extraterritorially. See United Dictionary (copyright statute requiring that U. S. copyright notices be placed in all copies of a work did not apply to copies pub­ lished abroad because U. S. copyright laws have no “force” beyond the United States’ borders); 4 M. Nimmer & D. Nimmer, Copyright p. 17–18 (2012) (hereinafter Nimmer) (“[C]opyright laws do not have any extraterrito­ rial operation.”); 4 W. Patry, Copyright p. 13–66 (2012) (hereinafter Patry) (“Copyright laws are rigor- ously territorial.”). The printing of Wiley’s foreign­ manufactured textbooks therefore was not governed by Title 17. The textbooks thus were not “lawfully made Cite as: 568 U. S. (2013) 7 GINSBURG, J., dissenting under

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

as: 568 U. S. (2013) 7 GINSBURG, J., dissenting under [Title 17],” the crucial precondition for application of And if does not apply, there is no dis­ pute that Kirtsaeng’s conduct constituted copyright in­ fringement under The Court’s point of departure is similar to mine. Ac­ cording to the Court, the phrase “ ‘lawfully made under this title’ means made ‘in accordance with’ or ‘in compli­ ance with’ the Copyright Act.” Ante, at 8. But the Court overlooks that, according to the very dictionaries it cites, ante, at 9, the word “under” commonly signals a relation­ ship of subjection, where one thing is governed or regu- lated by another. See Black’s Law Dictionary 1525 (6th ed. 1990) (“under” “frequently” means “inferior” or “subordi­ nate” (internal quotation marks omitted)); 18 Oxford English Dictionary 950 (“under” means, among other things, “[i]n accordance with (some regulative power or principle)” (emphasis added)). See also Webster’s Third New International Dictionary 2487 (1961) (“under” means, among other things, “in a condition of sub- jection, regulation, or subordination” and “suffering re­ striction, restraint, or control by”). Only by disregarding this established meaning of “under” can the Court arrive at the conclusion that Wiley’s foreign-manufactured text­ books were “lawfully made under” U. S. copyright law, even though that law did not govern their creation. It is anomalous, however, to speak of particular conduct as “lawful” under an inapplicable law. For example, one might say that driving on the right side of the road in England is “lawful” under U. S. law, but that would be so only because U. S. law has nothing to say about the sub­ ject. The governing law is English law, and English law demands that driving be done on the left side of the road.4 —————— 4 The Court asserts that my position gives the word “lawfully” in “little, if any, linguistic work to do.” Ante, at 9. That is not so. My reading gives meaning to each word in the phrase “lawfully made 8 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting The logical implication of the Court’s definition of the word “under” is that any copy manufactured abroad—even a piratical one made without the copyright owner’s author­ ization and in violation of the law of the country where it was created—would fall within the scope of Any such copy would have been made “in accordance with” or “in compliance with” the U. S. Copyright Act, in the sense that manufacturing the copy did not violate the Act (be­ cause the Act does not apply extraterritorially). The Court rightly refuses

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

the Act does not apply extraterritorially). The Court rightly refuses to accept such an absurd conclusion. Instead, it interprets as applying only to copies whose making actually complied with Title 17, or would have complied with Title 17 had Title 17 been ap­ plicable (i.e., had the copies been made in the United States). See ante, at 8 (“ ‘first sale’ doctrine would apply to copyrighted works as long as their manufacture met the requirements of American copyright law.”). Con­ gress, however, used express language when it called for such a counterfactual inquiry in 17 U.S. C. §(2) and (b). See (2) (“Importation into the United States or exportation from the United States, without the authority of the owner of copyright under this title, of copies or phonorecords, the making of which either consti­ tuted an infringement of copyright, or which would have constituted an infringement of copyright if this title had been applicable, is an infringement of the exclusive right to distribute copies or phonorecords under section 106.” (emphasis added)); (“In a case where the making —————— under this title.” The word “made” signifies that the conduct at issue is the creation or manufacture of a copy. See Webster’s Third New International Dictionary 6 (1961) (defining “made” as “artificially produced by a manufacturing process”). The word “lawfully” indicates that for to apply, the copy’s creation must have complied with some body of law. Finally, the prepositional phrase “under this title” clarifies what that body of law is—namely, the copyright prescriptions contained in Title 17 of the U. S. Code. Cite as: 568 U. S. (2013) 9 GINSBURG, J., dissenting of the copies or phonorecords would have constituted an infringement of copyright if this title had been applicable, their importation is prohibited.” (emphasis added)). Had Congress intended courts to engage in a similarly hypo­ thetical inquiry under Congress would pre­ sumably have included similar language in that section. See ; brackets in original)).5 —————— 5 Attempting to show that my reading of is susceptible to the same criticism, the Court points to the now-repealed “manufacturing clause,” which required “copies of a work consisting preponderantly of nondramatic literary material in the English language” to be “manufactured in the United States or Canada.” Copyright Act of 1976, Because Congress expressly referred to manu­ facturing in this provision, the Court contends, the phrase “lawfully made under this title” in cannot mean “manufactured in the United States.” Ante, at 19. This argument is a non sequitur. I do not contend that the phrases “lawfully made under this title” and “manu­ factured in the United

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

made under this title” and “manu­ factured in the United States” are interchangeable. To repeat, I read the phrase “lawfully made under this title” as referring to instances in which a copy’s creation is governed by, and conducted in compliance with, Title 17 of the U. S. Code. See Not all copies “manu­ factured in the United States” will satisfy this standard. For example, piratical copies manufactured in the United States without the copy­ right owner’s authorization are not “lawfully made under [Title 17].” Nor would the phrase “lawfully manufactured in the United States” be an exact substitute for “lawfully made under this title.” The making of a copy may be lawful under Title 17 yet still violate some other provi­ sion of law. Consider, for example, a copy made with the copyright owner’s authorization by workers who are paid less than minimum wage. The copy would be “lawfully made under [Title 17]” in the sense that its creation would not violate any provision of that title, but the copy’s manufacturing would nonetheless be unlawful due to the viola­ 10 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Not only does the Court adopt an unnatural construc­ tion of the phrase “lawfully made under this title.” Concomitantly, the Court reduces to insignifi­ cance. As the Court appears to acknowledge, see ante, at 26, the only independent effect has under to­ day’s decision is to prohibit unauthorized importations carried out by persons who merely have possession of, but do not own, the imported copies. See 17 U.S. C. ( applies to any “owner of a particular copy or phonorecord lawfully made under this title” (emphasis added)).6 If this is enough to avoid rendering entirely “superfluous,” ante, 6, it hardly suffices to give the owner’s importation right the scope Congress intended it to have. Congress used broad language in ; it did so to achieve a broad objective. Had Congress intended simply to provide a copyright remedy against larcenous lessees, licensees, consignees, and bailees of films and other copyright-protected goods, see ante, at 13–14, 26, it likely would have used language tailored to that narrow purpose. See 2 Nimmer at 8–184.31, n. 432 (“It may be wondered whether potential causes of action [against licensees and the like] are more than theo­ retical.”). See also ante, (KAGAN, J., concurring) (the Court’s decision limits “to a fairly esoteric set of —————— tion of the minimum-wage laws. 6 When was originally enacted in 1976, it played an addi­ tional role—providing a private cause of action against importers of piratical goods. See Quality 5

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

of action against importers of piratical goods. See Quality 5 U.S., at 146. In 2008, however, Congress amended to provide for such a cause of action in (2), which prohibits the unauthorized “[i]mportation into the United States of copies or phonorecords, the making of which either constituted an infringement of copyright, or which would have consti­ tuted an infringement of copyright if [Title 17] had been applicable.” See PROIPA, –4260. Thus, under the Court’s interpretation, the only conduct reached by but not (2) is a nonowner’s unauthorized importation of a nonpiratical copy. Cite as: 568 U. S. (2013) 11 GINSBURG, J., dissenting applications”).7 The Court’s decision also overwhelms 17 U.S. C. (3)’s exceptions to importation prohibi­ tion. 2 P. Goldstein, Copyright p. 7:141 (3d ed. 2012) (hereinafter Goldstein).8 Those exceptions permit the importation of copies without the copyright owner’s authorization for certain governmental, personal, schol- arly, educational, and religious purposes. 17 U.S. C. (3). Copies imported under these exceptions “will often be lawfully made gray market goods purchased through normal market channels abroad.” 2 Goldstein —————— 7 Notably, the Court ignores the history of which reveals that the primary purpose of the prescription was not to provide a remedy against rogue licensees, consignees, and bailees, against whom copyright owners could frequently assert breach-of-contract claims even in the absence of Instead, the primary purpose of was to reach third-party importers, enterprising actors like Kirtsaeng, against whom copyright owners could not assert contract claims due to lack of privity. See Part III, infra. 8 Section 602(a)(3) provides: “This subsection [i.e., ] does not apply to— “(A) importation or exportation of copies or phonorecords under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use; “(B) importation or exportation, for the private use of the importer or exporter and not for distribution, by any person with respect to no more than one copy or phonorecord of any one work at any one time, or by any person arriving from outside the United States or departing from the United States with respect to copies or phonorecords forming part of such person’s personal baggage; or “(C) importation by or for an organization operated for scholarly, educational, or religious purposes and not for private gain, with respect to no more than one copy of an audiovisual work solely for its archival purposes, and no more than five copies or phonorecords

Justice Ginsburg

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archival purposes, and no more than five copies or phonorecords of any other work for its library lending or archival purposes, unless the importation of such copies or phonorecords is part of an activity consisting of sys­ tematic reproduction or distribution, engaged in by such organization in violation of the provisions of section 108(g)(2).” 12 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting at 7:141.9 But if, as the Court holds, such copies can in any event be imported by virtue of (3)’s work has already been done. For example, had Congress conceived of sweep as the Court does, what earthly reason would there be to provide, as Congress did in (3)(C), that a library may import “no more than five copies” of a non-audiovisual work for its “lending or archival purposes”? The far more plausible reading of § and 602(a), then, is that Congress intended to apply to copies made in the United States, not to copies manufactured and sold abroad. That reading of the first sale and impor­ tation provisions leaves (3)’s exceptions with real, meaningful work to do. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sen­ tence, or word shall be superfluous, void, or insignificant.” (internal quotation marks omitted)). In the range of circum­ stances covered by the exceptions, (3) frees indi­ viduals and entities who purchase foreign-made copies abroad from the requirement they would otherwise face under of obtaining the copyright owner’s per­ mission to import the copies into the United States.10 —————— 9 The term “gray market good” refers to a good that is “imported out­ side the distribution channels that have been contractually negotiated by the intellectual property owner.” Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429 Such goods are also commonly called “parallel imports.” 10 The Court asserts that its reading of is bolstered by which extends the copyright “protection[s]” of Title 17 to a wide variety of foreign works. See ante, at 10–11. The “protection under this title” afforded by however, is merely protection against infringing conduct within the United States, the only place where Title 17 applies. See 4 W. Patry, Copyright pp. 13–128 to 13–129 (2012) (hereinafter Patry). Thus, my reading of the phrase “under this title” in Cite as: 568 U. S. (2013) 13 GINSBURG, J., dissenting III The history of reinforces the conclusion I draw from the text

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history of reinforces the conclusion I draw from the text of the relevant provisions: does not apply to copies manufactured abroad. Section 602(a)(1) was enacted as part of the Copyright Act of 1976, –2590. That Act was the product of a lengthy revision effort overseen by the U. S. Copyright Office. See Mills Music, In its initial 1961 report on recommended revisions, the Copyright Office noted that publishers had “suggested that the [then-existing] import ban on piratical copies should be extended to bar the importation of foreign edition[s]” in violation of “agreements to divide interna­ tional markets for copyrighted works.” Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 126 (H. R. Judiciary Comm. Print 1961) (herein­ after Copyright Law Revision). See Copyright Act of 1947, (“The importation into the United States of any piratical copies of any work copyrighted —————— is consistent with Congress’ use of that phrase in Fur­ thermore, describes which works are entitled to copyright protec­ tion under U. S. law. But no one disputes that Wiley’s copyrights in the works at issue in this case are valid. The only question is whether Kirtsaeng’s importation of copies of those works infringed Wiley’s copyrights. It is basic to copyright law that “[o]wnership of a copyright is distinct from ownership of any material object in which the work is embodied.” 17 U.S. C. See also (“ ‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”). Given the distinction copyright law draws between works and copies, is inapposite to the question here presented. 4 Patry at 13–129 (“There is no connection, linguistically or substantively, between Section[s] 104 and 109: Section 104 deals with national eligibility for the intangible work of authorship; Section 109(a) deals with the tangible, physical embodiment of the work, the ‘copy.’ ”). 14 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting in the United States is prohibited.”). The Copyright Office originally recommended against such an extension of the importation ban, reasoning that enforcement of territorial restrictions was best left to contract law. Copy­ right Law Revision 126. Publishing-industry representatives argued strenuously against the position initially taken by the Copyright Of­ fice. At a 1962 panel discussion on the Copyright Office’s report, for example, Horace Manges of the American Book Publishers Council stated: “When a U.

Justice Ginsburg

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of the American Book Publishers Council stated: “When a U. S. book publisher enters into a contract with a British publisher to acquire exclusive U. S. rights for a particular book, he often finds that the English edition of that particular book finds its way into this country. Now it’s all right to say, ‘Com­ mence a lawsuit for breach of contract.’ But this is expensive, burdensome, and, for the most part, inef­ fective.” Copyright Law Revision Part 2: Discussion and Comments on Report of the Register of Copy­ rights on the General Revision of the U. S. Copyright Law, 88th Cong., 1st Sess., 212 (H. R. Judiciary Comm. Print 1963). Sidney Diamond, representing London Records, elabo­ rated on Manges’ statement. “There are many situations,” he explained, “in which it is not necessarily a question of the inadequacy of a contract remedy—in the sense that it may be difficult or not quick enough to solve the particular problem.” “Very frequently,” Diamond stated, publishers “run into a situation where copies of [a] work produced in a foreign country may be shipped [to the United States] without violating any contract of the U. S. copyright proprietor.” To illustrate, Diamond noted, if a “British publisher [sells a copy] to an individual who in turn ship[s] it over” to the United States, the indi­ vidual’s conduct would not “violate [any] contract between Cite as: 568 U. S. (2013) 15 GINSBURG, J., dissenting the British and the American publisher.” In such a case, “no possibility of any contract remedy” would exist. The facts of Kirtsaeng’s case fit Diamond’s example, save that the copies at issue here were printed and ini- tially sold in Asia rather than Great Britain. After considering comments on its 1961 report, the Copyright Office “prepared a preliminary draft of provi­ sions for a new copyright statute.” Copyright Law Revi­ sion Part 3: Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., V (H. R. Judiciary Comm. Print 1964). Section 44 of the draft statute addressed the concerns raised by publishing-industry representatives. In particu­ lar, provided: “Importation into the United States of copies or rec­ ords of a work for the purpose of distribution to the public shall, if such articles are imported without the authority of the owner of the exclusive right to dis­ tribute copies or records under this title, constitute an infringement of copyright actionable under section 35 [i.e., the section providing for a private cause of action for copyright infringement].” at 32–33. In a 1964 panel discussion regarding

Justice Ginsburg

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copyright infringement].” at 32–33. In a 1964 panel discussion regarding the draft statute, Abe Goldman, the Copyright Office’s General Counsel, left no doubt about the meaning of It represented, he explained, a “shif[t]” from the Copyright Office’s 1961 report, which had recommended against using copyright law to facilitate publishers’ efforts to segment interna­ tional markets. Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U. S. Copyright Law, 88th Cong., 2d Sess., 203 (H. R. Judiciary Comm. Print 1964). Section 44(a), Gold­ man stated, would allow copyright owners to bring in­ fringement actions against importers of “foreign copies that were made under proper authority.” See also 16 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting 05–206 (Goldman agreed with a speaker’s com­ ment that “enlarge[d]” U. S. copyright law by ex­ tending import prohibitions “to works legally produced in Europe” and other foreign countries).11 The next step in the copyright revision process was the introduction in Congress of a draft bill on July 20, 1964. See Copyright Law Revision Part 5: 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., III (H. R. Judiciary Comm. Print 1965). After another round of public comments, a revised bill was introduced on Feb­ ruary 4, 1965. See Copyright Law Revision Part 6: Sup­ plementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revi­ sion Bill, 89th Cong., 1st Sess., V (H. R. Judiciary Comm. Print 1965) (hereinafter Copyright Law Revision Part 6). In language closely resembling the statutory text later enacted by Congress, of the 1965 bill provided: “Importation into the United States, without the au­ thority of the owner of copyright under this title, of copies or phonorecords of a work for the purpose of distribution to the public is an infringement of the ex­ clusive right to distribute copies or phonorecords un­ der section 106, actionable under section 501.” at 292.12 —————— 11 As the Court observes, ante, 9, Irwin Karp of the Authors League of America stated at the 1964 panel discussion that ran counter to “the very basic concept of copyright law that, once you’ve sold a copy legally, you can’t restrict its resale.” Copyright Law Revision Part 4, 12. When asked if he was “presenting an argument against” however, Karp responded that he was “neutral on th[e] provision.” There is thus little reason to believe that any changes to the wording of before its codification in were made in response to Karp’s discussion of “the problem of restricting [the] transfer

Justice Ginsburg

dissenting

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to Karp’s discussion of “the problem of restricting [the] transfer of lawfully obtained [foreign] copies.” 12 There is but one difference between this language from the 1965 bill and the corresponding language in the current version of : Cite as: 568 U. S. (2013) 17 GINSBURG, J., dissenting The Court implies that the 1965 bill’s “explici[t] re­ fer[ence] to showed a marked departure from of the Copyright Office’s prior draft. Ante, 9. The Copyright Office, however, did not see it that way. In its summary of the 1965 bill’s provisions, the Copyright Office observed that of the 1965 bill, like of the Copyright Office’s prior draft, see at 15–16, permit­ ted copyright owners to bring infringement actions against unauthorized importers in cases “where the copyright owner had authorized the making of [the imported] copies in a foreign country for distribution only in that country.” Copyright Law Revision Part 6, at 1–150. See also at XXVI (Under of the 1965 bill, “[a]n unauthorized importer could be enjoined and sued for damages both where the copies or phonorecords he was importing were ‘piratical’ (that is, where their making would have constituted an infringement if the U. S. copyright law could have been applied), and where their making was ‘lawful.’ ”). The current text of was finally enacted into law in 1976. See Copyright Act of 1976, 90 Stat. 2589–2590. The House and Senate Committee Reports on the 1976 Act demonstrate that Congress understood, as did the Copyright Office, just what that text meant. Both Reports state: “Section 602 [deals] with two separate situations: im­ portation of ‘piratical’ articles (that is, copies or phonorecords made without any authorization of the —————— In the current version, the phrase “for the purpose of distribution to the public” is omitted and the phrase “that have been acquired outside the United States” appears in its stead. There are no material differences between the quoted language from the 1965 bill and the corresponding language contained in the 1964 bill. See Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., 292–293 (H. R. Judiciary Comm. Print 1965). 18 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting copyright owner), and unauthorized importation of copies or phonorecords that were lawfully made. The general approach of section 602 is to make unauthor- ized importation an act of infringement in both cases, but to permit the Bureau of Customs to prohibit im­ portation only of ‘piratical’ articles.” S. Rep. No. 94–

Justice Ginsburg

dissenting

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im­ portation only of ‘piratical’ articles.” S. Rep. No. 94– 473, p. 151 (1975) (emphasis added). See also H. R. Rep. No. 94–1476, p. 169 (1976) (same). In sum, the legislative history of the Copyright Act of 1976 is hardly “inconclusive.” Ante, 8. To the con­ trary, it confirms what the plain text of the Act conveys: Congress intended to provide copyright owners with a remedy against the unauthorized importation of foreign-made copies of their works, even if those copies were made and sold abroad with the copyright owner’s authorization.13 IV Unlike the Court’s holding, my position is consistent with the stance the United States has taken in international­ trade negotiations. This case bears on the highly con­ tentious trade issue of interterritorial exhaustion. The issue arises because intellectual property law is territorial in nature, see which means that creators of intellectual property “may hold a set of parallel” intellec­ tual property rights under the laws of different nations. Chiappetta, The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340–341 (2000) (hereinafter Chiappetta). There is no international con­ —————— 13 The Court purports to find support for its position in the House and Senate Committee Reports on the 1976 Copyright Act. Ante, at 30–31. It fails to come up with anything in the Act’s legislative history, how­ ever, showing that Congress understood the words “lawfully made under this title” in to encompass foreign-made copies. Cite as: 568 U. S. (2013) 19 GINSBURG, J., dissenting sensus on whether the sale in one country of a good in- corporating protected intellectual property exhausts the intellectual property owner’s right to control the distribu­ tion of that good elsewhere. Indeed, the members of the World Trade Organization, “agreeing to disagree,”14 pro­ vided in Article 6 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Apr. 15, 1994, 33 I. L. M. 1197, 1200, that “nothing in this Agree­ ment shall be used to address the issue of exhaustion.” See Chiappetta 346 (observing that exhaustion of intellec­ tual property rights was “hotly debated” during the TRIPS negotiations and that Article 6 “reflects [the negotiators’] ultimate inability to agree” on a single international standard). Similar language appears in other treaties to which the United States is a party. See World Intellectual Property Organization (WIPO) Copyright Treaty, Art. 6(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 7 (“Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the ex­ haustion

Justice Ginsburg

dissenting

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determine the conditions, if any, under which the ex­ haustion of the right [to control distribution of copies of a copyrighted work] applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author.”); WIPO Perfor­ mances and Phonograms Treaty, Art. 8(2), Dec. 20, 1996, S. Treaty Doc. No. 105–17, p. 28 (containing language nearly identical to Article 6(2) of the WIPO Copyright Treaty). In the absence of agreement at the international level, each country has been left to choose for itself the exhaus­ tion framework it will follow. One option is a national­ exhaustion regime, under which a copyright owner’s right —————— 14 Chiappetta,The Desirability of Agreeing to Disagree: The WTO, TRIPS, International IPR Exhaustion and a Few Other Things, 21 Mich. J. Int’l L. 333, 340 (2000) (hereinafter Chiappetta) (internal quotation marks omitted). 20 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting to control distribution of a particular copy is exhausted only within the country in which the copy is sold. See Forsyth & Rothnie, Parallel Imports, in The Interface Between Intellectual Property Rights and Competition Policy 429, 430 (hereinafter Forsyth & Rothnie). Another option is a rule of international exhaustion, under which the authorized distribution of a particular copy anywhere in the world exhausts the copy­ right owner’s distribution right everywhere with respect to that copy. See The European Union has adopted the intermediate approach of regional exhaustion, under which the sale of a copy anywhere within the European Economic Area exhausts the copyright owner’s distribu­ tion right throughout that region. See Section 602(a)(1), in my view, ties the United States to a national-exhaustion framework. The Court’s decision, in con- trast, places the United States solidly in the international­ exhaustion camp. Strong arguments have been made both in favor of, and in opposition to, international exhaustion. See Chiappetta 360 (“[r]easonable people making valid points can, and do, reach conflicting conclusions” regarding the desirability of international exhaustion). International exhaustion subjects copyright-protected goods to competition from lower priced imports and, to that extent, benefits con- sumers. Correspondingly, copyright owners profit from a national-exhaustion regime, which also enlarges the mon­ etary incentive to create new copyrightable works. See Forsyth & Rothnie 432–437 (surveying arguments for and against international exhaustion). Weighing the competing policy concerns, our Govern­ ment reached the conclusion that widespread adoption of the international-exhaustion framework would be incon­ sistent with the long-term economic interests of the United States. See Brief for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470,

Justice Ginsburg

dissenting

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as Amicus Curiae in Quality O. T. 1997, No. 96–1470, pp. 22–26 (herein­ Cite as: 568 U. S. (2013) 21 GINSBURG, J., dissenting after Quality Brief).15 Accordingly, the United States has steadfastly “taken the position in international trade negotiations that domestic copyright owners should have the right to prevent the unauthorized importation of copies of their work sold abroad.” The United States has “advanced this position in multilateral trade negotiations,” including the negotiations on the TRIPS Agreement. See also D. Gervais, The TRIPS Agreement: Drafting History and Analysis p. 199 It has also taken a dim view of our trading partners’ adoption of legislation incorporating elements of international exhaustion. See Clapperton & Corones, Locking in Customers, Locking Out Competitors: Anti- Circumvention Laws in Australia and Their Potential Effect on Competition in High Technology Markets, 30 Melbourne U. L. Rev. 657, 664 (2006) (United States expressed concern regarding international-exhaustion leg- islation in Australia); Montén, Comment, The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? 9 Marq. Intellectual —————— 15 The Court states that my “reliance on the Solicitor General’s posi­ tion in Quality is undermined by his agreement in that case with [the] reading of ” that the Court today adopts. Ante, at 33. The United States’ principal concern in both Quality and this case, however, has been to protect copyright owners’ “right to prevent paral­ lel imports.” Brief for United States as Amicus Curiae in Quality O. T. 1997, No. 96–1470, p. 6 (hereinafter Quality Brief). See also Brief for United States as Amicus Curiae 14 (arguing that Kirtsaeng’s interpretation of which the Court adopts, would “subver[t] Section 602(a)(1)’s ban on unauthorized importation”). In Quality the Solicitor General urged this Court to hold that codification of the first sale doctrine does not limit the right to control importation set forth in Quality Brief 7–30. After Quality rejected that contention, the United States reconsidered its position, and it now endorses the interpretation of the phrase “lawfully made under this title” I would adopt. Brief for United States as Amicus Curiae 6–7, 13–14. 22 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Property L. Rev. 387, 417–418 (2005) (same with respect to New Zealand and Taiwan). Even if the text and history of the Copyright Act were am- biguous on the answer to the question this case presents— which they are not, see Parts II–III, supra16—I would resist a holding out of accord with the firm position the United States has taken on exhaustion in internation­ al negotiations. Quality

Justice Ginsburg

dissenting

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States has taken on exhaustion in internation­ al negotiations. Quality I acknowledge, discounted the Government’s concerns about potential inconsistency with United States obligations under certain bilateral trade agreements. See 5 U.S., at 153–154. See also Quality Brief 22–24 (listing the agreements). That decision, however, dealt only with copyright-protected products made in the United States. See 5 U.S., (GINSBURG, J., concurring). Quality left open the question whether owners of U. S. copyrights could retain control over the importation of copies manufactured and sold abroad—a point the Court obscures, see ante, at 33 (arguing that Quality “significantly eroded” the national-exhaustion principle that, in my view, embraces). The Court today answers that question with a resounding “no,” and in doing so, it risks undermining the United States’ credibility on the world stage. While the Government has urged our trading partners to refrain from adopting international-exhaustion regimes that could benefit consumers within their borders but would impact adversely on intellectual-property producers in the United States, the Court embraces an international-exhaustion rule that could benefit U. S. consumers but would likely —————— 16 Congress hardly lacks capacity to provide for international exhaus­ tion when that is its intent. Indeed, Congress has expressly provided for international exhaustion in the narrow context of semiconductor chips embodying protected “mask works.” See 17 U.S. C. 906(b). See also 2 M. Nimmer & D. Nimmer, Copyright p. 8A–37 (2012) (hereinafter Nimmer) (“[T]he first sale doctrine under expressly immunizes unauthorized importation.”). Cite as: 568 U. S. (2013) GINSBURG, J., dissenting disadvantage foreign holders of U. S. copyrights. This dissonance scarcely enhances the United States’ “role as a trusted partner in multilateral endeavors.” Vimar Seguros y Reaseguros, S. 539 (1995). V I turn now to the Court’s justifications for a decision difficult to reconcile with the Copyright Act’s text and history. A The Court asserts that its holding “is consistent with antitrust laws that ordinarily forbid market divisions.” Ante, at 32. See also ante, at 18 (again referring to anti­ trust principles). Section 602(a)(1), however, read as I do and as the Government does, simply facilitates copyright owners’ efforts to impose “vertical restraints” on distribu­ tors of copies of their works. See Forsyth & Rothnie 435 (“Parallel importation restrictions enable manufacturers and distributors to erect ‘vertical restraints’ in the market through exclusive distribution agreements.”). See gener- ally Leegin Creative Leather Products, We have held that vertical restraints are not per se illegal under of the Sherman Act, 15 U.S. C. because such “restraints can have procompetitive effects.” 551 U.S., at 881–882.17 —————— 17 Despite the Court’s suggestion to the contrary, this case

Justice Ginsburg

dissenting

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17 Despite the Court’s suggestion to the contrary, this case in no way implicates the per se antitrust prohibition against horizontal “ ‘[a]greements between competitors to allocate territories to minimize competition.’ ” Ante, at 32 (quoting Palmer v. BRG of Ga., Inc., 8 U.S. 46, (1990) ). Wiley is not requesting authority to enter into collusive agreements with other textbook publishers that would, for example, make Wiley the exclusive supplier of textbooks on particular subjects within particular geographic regions. Instead, Wiley asserts no more than the prerogative to impose vertical restraints 24 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting B The Court sees many “horribles” following from a hold­ ing that the phrase “lawfully made under this title” does not encompass foreign-made copies. Ante, (internal quotation marks omitted). If excluded foreign-made copies, the Court fears, then copyright own­ ers could exercise perpetual control over the downstream distribution or public display of such copies. A ruling in Wiley’s favor, the Court asserts, would shutter libraries, put used-book dealers out of business, cripple art muse­ ums, and prevent the resale of a wide range of consumer goods, from cars to calculators. Ante, at 19–22. See also ante, –3 (KAGAN, J., concurring) (expressing concern about “imposing downstream liability on those who pur­ chase and resell in the United States copies that happen to have been manufactured abroad”). Copyright law and precedent, however, erect barriers to the anticipated horribles.18 1 Recognizing that foreign-made copies fall outside the ambit of would not mean they are forever free of the first sale doctrine. As earlier observed, see the Court stated that doctrine initially in its 1908 Bobbs- —————— on the distribution of its own textbooks. See Hovenkamp, Post-Sale Restraints and Competitive Harm: The First Sale Doctrine in Perspec­ tive, 66 N. Y. U. Ann. Survey Am. L. 487, 488 (“vertical re­ straints” include “limits [on] the way a seller’s own product can be distributed”). 18 As the Court observes, ante, at 32–33, the United States stated at oral argument that the types of “horribles” predicted in the Court’s opinion would, if they came to pass, be “worse than the frustration of market segmentation” that will result from the Court’s interpretation of Tr. of Oral Arg. 51. The United States, however, recognized that this purported dilemma is a false one. As the United States explained, the Court’s horribles can be avoided while still giving mean­ ingful effect to ban on unauthorized importation. Cite as: 568 U. S. (2013) 25 GINSBURG, J., dissenting Merrill decision. At that time, no statutory provision expressly codified the first

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

At that time, no statutory provision expressly codified the first sale doctrine. Instead, copy­ right law merely provided that copyright owners had “the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending” their works. Copyright Act of 1891, In Bobbs-Merrill, the Court addressed the scope of the statutory right to “ven[d].” In granting that right, the Court held, Congress did not intend to permit copyright owners “to fasten a restriction upon the subsequent alienation of the subject-matter of copyright after the owner had parted with the title to one who had acquired full dominion over it and had given a satisfactory price for it.” –350. “[O]ne who has sold a copy­ righted article without restriction,” the Court ex­ plained, “has parted with all right to control the sale of it.” Thus, “[t]he purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.” Under the logic of Bobbs-Merrill, the sale of a foreign­ manufactured copy in the United States carried out with the copyright owner’s authorization would exhaust the copyright owner’s right to “vend” that copy. The copy could thenceforth be resold, lent out, or otherwise redis­ tributed without further authorization from the copyright owner. Although uses the word “distribute” rather than “vend,” there is no reason to think Congress intended the word “distribute” to bear a meaning different from the construction the Court gave to the word “vend” in Bobbs- Merrill. See (emphasizing that the question before the Court was “purely [one] of statutory construction”).19 —————— 19 It appears that the Copyright Act of 1976 omitted the word “vend” and introduced the word “distribute” to avoid the “redundan[cy]” present in pre-1976 law. Copyright Law Revision: Report of the Regis­ ter of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., 21 (H. R. Judiciary Comm. Print 1961) (noting 26 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting Thus, in accord with Bobbs-Merrill, the first authorized distribution of a foreign-made copy in the United States exhausts the copyright owner’s distribution right under After such an authorized distribution, a library may lend, or a used-book dealer may resell, the foreign­ made copy without seeking the copyright owner’s permis­ sion. Cf. ante, at 19–21. For example, if Wiley, rather than Kirtsaeng, had imported into the United States and then sold the foreign­ made textbooks at issue in this case, Wiley’s dis­ tribution right would have been exhausted under the rationale of Bobbs-Merrill. Purchasers of

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

have been exhausted under the rationale of Bobbs-Merrill. Purchasers of the textbooks would thus be free to dispose of the books as they wished without first gaining a license from Wiley. This line of reasoning, it must be acknowledged, signifi­ cantly curtails the independent effect of If, as I maintain, the term “distribute” in incorporates the first sale doctrine by virtue of Bobbs-Merrill, then codification of that doctrine adds little to the regulatory regime.20 Section 109(a), however, does serve —————— that the exclusive rights to “publish” and “vend” works under the Copyright Act of 1947, (a), –653, were “redundant”). 20 My position that Bobbs-Merrill lives on as a limiting construction of the distribution right does not leave with no work to do. There can be little doubt that the books at issue in Bobbs-Merrill were published and first sold in the United States. See Bobbs-Merrill Co. v. Straus, F. 155, (the publisher claiming copy- right infringement in Bobbs-Merrill was incorporated and had its principal office in Indiana). See also Copyright Act of 1891, 26 Stat. 1107–1108 (generally prohibiting importation, even by the copyright owner, of foreign-manufactured copies of copyrighted books); 4 Patry 3:40, at 13–111 (under the Copyright Act of 1891, “copies of books by both foreign and U. S. authors had to be printed in the United States”). But cf. ante, at 18 (asserting, without acknowledging the 1891 Copy­ right Act’s general prohibition against the importation of foreign-made copies of copyrighted books, that the Court is unable to find any “geo­ graphical distinctions in Bobbs-Merrill ”). Thus, exhaustion occurs under Bobbs-Merrill only when a copy is distributed within the United Cite as: 568 U. S. (2013) 27 GINSBURG, J., dissenting as a statutory bulwark against courts deviating from Bobbs-Merrill in a way that increases copyright owners’ control over downstream distribution, and legislative history indicates that is precisely the role Congress in­ tended to play. Congress first codified the first sale doctrine in of the Copyright Act of 1909, 35 Stat. 1084.21 It did so, the House Committee Report on the 1909 Act explains, “in order to make clear that [Con­ gress had] no intention [of] enlarg[ing] in any way the construction to be given to the word ‘vend.’ ” H. R. Rep. No. 2222, 60th Cong., 2d Sess., 19 (1909). According to the Committee Report, was “not intended to change [exist­ ing law] in any way.” The position I have stated and explained accords with this expression of congressional intent. In enacting and its successors, I would hold, Congress did not “change existing law,” ib by strip­ ping the

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

did not “change existing law,” ib by strip­ ping the word “vend” (and thus its substitute “distribute”) of the limiting construction imposed in Bobbs-Merrill. In any event, the reading of the Copyright Act to which I subscribe honors Congress’ aim in enacting while the Court’s reading of the Act severely diminishes role. See at 10–12. My position in no way tugs against the principle underlying —i.e., that certain conduct by the copyright owner exhausts the —————— States with the copyright owner’s permission, not when it is distributed abroad. But under as interpreted in Quality any author­ ized distribution of a U. S.-made copy, even a distribution occurring in a foreign country, exhausts the copyright owner’s distribution right under See 5 U.S., at 145, n. 14. Section 109(a) therefore provides for exhaustion in a circumstance not reached by Bobbs-Merrill. 21 Section 41 of the 1909 Act provided: “[N]othing in this Act shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained.” This language was repeated without material change in of the Copyright Act of 1947, As noted above, see 17 U.S. C. sets out the current codification of the first sale doctrine. 28 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting owner’s distribution right. The Court, in contrast, fails to give meaningful effect to Congress’ manifest intent in to grant copyright owners the right to control the importation of foreign-made copies of their works. 2 Other statutory prescriptions provide further protection against the absurd consequences imagined by the Court. For example, (3)(C) permits “an organization oper­ ated for scholarly, educational, or religious purposes” to import, without the copyright owner’s authorization, up to five foreign-made copies of a non-audiovisual work— notably, a book—for “library lending or archival purposes.” But cf. ante, at 19–20 (suggesting that affirming the Se­ cond Circuit’s decision might prevent libraries from lend­ ing foreign-made books).22 The Court also notes that amici representing art muse­ ums fear that a ruling in Wiley’s favor would prevent museums from displaying works of art created abroad. Ante, (citing Brief for Association of Art Museum Directors et al.). These amici observe that a museum’s right to display works of art often depends on 17 U.S. C. 09(c). See Brief for Association of Art Museum Direc­ tors et al. 11–13. That provision addresses exhaustion of —————— 22 A group of amici representing libraries expresses the concern that lower courts might interpret (3)(C) as authorizing only the importing, but not the lending, of foreign-made copies of non-audiovisual works.

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

but not the lending, of foreign-made copies of non-audiovisual works. See Brief for American Library Association et al. 20. The United States maintains, and I agree, however, that (3)(C) “is fairly (and best) read as implicitly authorizing lending, in addition to importation, of all works other than audiovisual works.” Brief for United States as Amicus Curiae 30, n. 6. Title 17 U.S. C. 09(c) provides: “Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.” Cite as: 568 U. S. (2013) 29 GINSBURG, J., dissenting a copyright owner’s exclusive right under 06(5) to publicly display the owner’s work. Because 09(c), like applies only to copies “lawfully made under this title,” amici contend that a ruling in Wiley’s favor would prevent museums from invoking 09(c) with respect to foreign-made works of art. at 11–13.24 Limiting 09(c) to U. S.-made works, however, does not bar art museums from lawfully displaying works made in other countries. Museums can, of course, seek the copy­ right owner’s permission to display a work. Furthermore, the sale of a work of art to a U. S. museum may carry with it an implied license to publicly display the work. See 2 Patry at 5–280 (“[C]ourts have noted the potential availability of an implied nonexclusive licens[e] when the circumstances demonstrate that the parties intended that the work would be used for a specific purpose.”). Displaying a work of art as part of a museum exhibition might also qualify as a “fair use” under 17 U.S. C. 07. Cf. Bouchat v. Baltimore Ravens Ltd. Partnership, 619 F.3d 301, 313–316 (CA4 2010) (display of copyrighted logo in museum-like exhibition constituted “fair use”). The Court worries about the resale of foreign-made consumer goods “contain[ing] copyrightable software pro­ grams or packaging.” Ante, 1. For example, the Court observes that a car might be programmed with diverse forms of software, the copyrights to which might be owned by individuals or entities other than the manu- facturer of the car. Must a car owner, the Court asks, obtain permission from all of these various copyright owners before reselling her car? Although this question strays far from the one presented in this case and briefed by the parties, principles of fair use and implied —————— 24 The word “copy,” as it

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

use and implied —————— 24 The word “copy,” as it appears in 09(c), applies to the original of a work of art because the Copyright Act defines the term “copies” to “includ[e] the material object in which the work is first fixed.” 30 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting license (to the extent that express licenses do not exist) would likely permit the car to be resold without the copy­ right owners’ authorization.25 Most telling in this regard, no court, it appears, has been called upon to answer any of the Court’s “horribles” in an actual case. Three decades have passed since a federal court first published an opinion reading as applicable exclusively to copies made in the United States. See Columbia Broadcasting System, summarily aff ’d, Yet Kirtsaeng and his supporting amici cite not a single case in which the owner of a consumer good authorized for sale in the United States has been sued for copyright infringe­ ment after reselling the item or giving it away as a gift or to charity. The absence of such lawsuits is unsurprising. Routinely suing one’s customers is hardly a best business —————— 25 Principlesof fair use and implied license may also allow a U. S. tourist “who buys a copyrighted work of art, a poster, or a bumper sticker” abroad to publicly “display it in America without the copyright owner’s further authorization.” Ante, at 15. (The tourist could lawfully bring the work of art, poster, or bumper sticker into the United States under 17 U.S. C. (3)(B), which provides that impor­ tation ban does not apply to “importation by any person arriving from outside the United States with respect to copies forming part of such person’s personal baggage.”). Furthermore, an individual clearly would not incur liability for infringement merely by displaying a foreign-made poster or other artwork in her home. See 06(5) (grant­ ing the owners of copyrights in “literary, musical, dramatic, and chore­ ographic works, pantomimes, and pictorial, graphic, or sculptural works” the exclusive right “to display the copyrighted work publicly” (emphasis added)). See also (a work is displayed “publicly” if it is displayed “at a place open to the public or at any place where a sub­ stantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” (emphasis added)). Cf. 2 Nimmer at 8–192.2(1) (“[A] performance limited to members of the family and invited guests is not a public performance.” (footnote omitted)). Cite as: 568 U. S. (2013) 31 GINSBURG, J., dissenting practice.26 Manufacturers, moreover, may be

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

(2013) 31 GINSBURG, J., dissenting practice.26 Manufacturers, moreover, may be hesitant to do business with software programmers taken to suing consumers. Manufacturers may also insist that soft­ ware programmers agree to contract terms barring such lawsuits. The Court provides a different explanation for the absence of the untoward consequences predicted in its opinion—namely, that lower court decisions regarding the scope of first sale prescription have not been uniform. Ante, at Uncertainty generated by these conflicting decisions, the Court notes, may have deterred some copyright owners from pressing infringement claims. Ante, at –24. But if, as the Court suggests, there are a multitude of copyright owners champing at the bit to bring lawsuits against libraries, art museums, and consumers in an effort to exercise perpetual control over the down­ stream distribution and public display of foreign-made copies, might one not expect that at least a handful of such lawsuits would have been filed over the past 30 years? The absence of such suits indicates that the “practical problems” hypothesized by the Court are greatly exagger­ ated. Ante,27 They surely do not warrant disregard­ —————— 26 Exerting extensive control over secondary markets may not always be in a manufacturer’s best interest. Carmakers, for example, often trumpet the resale value of their vehicles. See, e.g., Nolan, UD grad leads Cadillac marketing, Dayton Daily News, Apr. 2, 2009, p. A8 (“Cadillac plays up its warranty coverage and reliable resale value to prospective customers.”). If the transaction costs of reselling vehicles were to rise, consumers’ perception of a new car’s value, and thus the price they are willing to pay for such a car, might fall—an outcome hardly favorable to automobile manufacturers. 27 It should not be overlooked that the ability to prevent importation of foreign-made copies encourages copyright owners such as Wiley to offer copies of their works at reduced prices to consumers in less devel­ oped countries who might otherwise be unable to afford them. The Court’s holding, however, prevents copyright owners from barring the importation of such low-priced copies into the United States, where they will compete with the higher priced editions copyright owners 32 KIRTSAENG v. JOHN WILEY & SONS, INC. GINSBURG, J., dissenting ing Congress’ intent, expressed in to grant copyright owners the authority to bar the importation of foreign-made copies of their works. Cf. Hartford Under- writers Ins. 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it accord­ ing to its terms.” (internal quotation marks omitted)). VI To recapitulate, the

Justice Ginsburg

dissenting

Kirtsaeng v. John Wiley & Sons, Inc.

https://www.courtlistener.com/opinion/2959744/kirtsaeng-v-john-wiley-sons-inc/

its terms.” (internal quotation marks omitted)). VI To recapitulate, the objective of statutory interpretation is “to give effect to the intent of Congress.” American Trucking 310 U.S., at Here, two congres- sional aims are evident. First, in enacting Con­ gress intended to grant copyright owners permission to segment international markets by barring the importation of foreign-made copies into the United States. Second, as codification of the first sale doctrine underscores, Congress did not want the exclusive distribution right conferred in to be boundless. Instead of harmonizing these objectives, the Court subordinates the first entirely to the second. It is unsurprising that none of the three major treatises on U. S. copyright law embrace the Court’s con­ struction of See 2 Nimmer at —————— make available for sale in this country. To protect their profit margins in the U. S. market, copyright owners may raise prices in less devel­ oped countries or may withdraw from such markets altogether. See Brief for United States as Amicus Curiae 26; Brief for Text and Aca­ demic Authors Association as Amicus Curiae 12; Brief for Association of American Publishers as Amicus Curiae 37. See also Chiappetta 357– 358 (a rule of national exhaustion “encourages entry and participation in developing markets at lower, locally more affordable prices by eliminating them as risky sources of cheaper parallel imports back into premium markets”). Such an outcome would disserve consumers—and especially students—in developing nations and would hardly advance the “American foreign policy goals” of supporting education and eco­ nomic development in such countries. Quality Brief 25–26. Cite as: 568 U. S. (2013) 33 GINSBURG, J., dissenting 8–184.34 to 8–184.35; 2 Goldstein at 7:141; 4 Patry § 13:44, 13:44.10. Rather than adopting the very international-exhaustion rule the United States has consistently resisted in international-trade negotiations, I would adhere to the national-exhaustion framework set by the Copyright Act’s text and history. Under that regime, codified in Kirtsaeng’s unauthorized importation of the foreign-made textbooks involved in this case infringed Wiley’s copyrights. I would therefore affirm the Second Circuit’s judgment

Justice Ginsburg

majority

Thryv, Inc. v. Click-To-Call Technologies, LP

https://www.courtlistener.com/opinion/4746632/thryv-inc-v-click-to-call-technologies-lp/

* Inter partes review is an administrative process in which a patent challenger may ask the U. S. Patent and Trade- mark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily pre- scribed limitation of the issues a party may raise on appeal from an inter partes review proceeding. When presented with a request for inter partes review, the agency must decide whether to institute review. 35 U.S. C. Among other conditions set by statute, if the request comes more than a year after suit against the re- questing party for patent infringement, “[a]n inter partes review may not be instituted.” “The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable.” In this case, the agency instituted inter partes review in —————— *JUSTICE THOMAS and JUSTICE ALITO join all but Part III–C of this opinion. † Key statutory provisions are reproduced in an appendix to this opin- ion. 2 THRYV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP Opinion of the Court response to a petition from Thryv, Inc., resulting in the can- cellation of several patent claims. Patent owner Click-to- Call Technologies, LP, appealed, contending that Thryv’s petition was untimely under The question before us: Does bar on judicial re- view of the agency’s decision to institute inter partes review preclude Click-to-Call’s appeal? Our answer is yes. The agency’s application of time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by I The Patent and Trademark Office has several ways “to reexamine—and perhaps cancel—a patent claim that it had previously allowed.” Cuozzo Speed Technologies, LLC v. Lee, 579 U. S. (2016) (slip op., at 3). Congress es- tablished the procedure at issue here, inter partes review, in the Leahy-Smith America Invents Act (AIA), 125 Stat. 284, enacted in 2011. See 35 U.S. C. et seq. Inter partes review allows third parties to challenge patent claims on grounds of invalidity specified by statute. (b). For inter partes review to proceed, the agency must agree to institute review. Any person who is not the pat- ent’s owner may file a petition requesting inter partes re- view. (a). The patent owner may oppose institution of inter partes review, asserting the petition’s “failure to meet any requirement of this chapter.” The AIA sets out prerequisites for institution. Among them, “[t]he Director may not authorize an inter partes re- view to be instituted unless the Director determines that there is a reasonable likelihood that the petitioner would

Justice Ginsburg

majority

Thryv, Inc. v. Click-To-Call Technologies, LP

https://www.courtlistener.com/opinion/4746632/thryv-inc-v-click-to-call-technologies-lp/

that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims chal- lenged in the petition.” Most pertinent to this case, Cite as: 590 U. S. (2020) 3 Opinion of the Court “[a]n inter partes review may not be instituted if the peti- tion requesting the proceeding is filed more than 1 year af- ter the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.” After receiving the petition and any response, the PTO “Director shall determine whether to institute an inter partes review under this chapter.” The Director has delegated institution authority to the Patent Trial and Appeal Board (Board). (a) (2019). As just noted, the federal agency’s “determination whether to institute an inter partes review under this section” is “final and nonappealable.” 35 U.S. C. Upon electing to institute inter partes review, the Board conducts a proceeding to evaluate the challenged claims’ va- lidity. See At the conclusion of the proceeding—if review “is instituted and not dismissed”—the Board “is- sue[s] a final written decision with respect to the patenta- bility of ” the challenged claims. “A party dissatis- fied with the final written decision may appeal the decision” to the Court of Appeals for the Federal Circuit. II Respondent Click-to-Call owns a patent relating to a technology for anonymous telephone calls, U. S. Patent No. 5,818,836 (’836 patent). In 2013, petitioner Thryv sought inter partes review, challenging several of the patent’s claims.1 In opposition, Click-to-Call urged that barred in- stitution of inter partes review because Thryv filed its peti- tion too late. Click-to-Call pointed to an infringement suit —————— 1 More precisely, the petition was filed by four companies, including YellowPages.com, LLC, and Ingenio, LLC. Through “a series of mergers, sales, and name changes,” both became Thryv. Brief for Petitioner 8. For simplicity, we refer to Thryv and its predecessor entities as “Thryv.” 4 THRYV, INC. v. CLICK-TO-CALL TECHNOLOGIES, LP Opinion of the Court filed in 2001, which ended in a voluntary dismissal without prejudice.2 In Click-to-Call’s view, that 2001 suit started one-year clock, making the 2013 petition untimely. The Board disagreed. Section 315(b) did not bar the in- stitution of inter partes review, the Board concluded, be- cause a complaint dismissed without prejudice does not trigger one-year limit. Finding no other barrier to institution, the Board decided to institute review. After proceedings on the merits, the Board issued a final written decision reiterating its rejection of Click-to-Call’s argument and canceling 13 of the