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Justice Brennan | 1,990 | 13 | dissenting | Horton v. California | https://www.courtlistener.com/opinion/112448/horton-v-california/ | Amendment rights." United A decision to invade a possessory interest in property is too important to be left to the discretion of zealous officers "engaged in the often competitive enterprise of ferreting out crime." "The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron, at The plain-view doctrine is an exception to the general rule that a seizure of personal property must be authorized by a warrant. As Justice Stewart explained in we accept a warrantless seizure when an officer is lawfully in a location and inadvertently sees evidence of a crime because of "the inconvenience of procuring a warrant" to seize this newly discovered piece of evidence. But "where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it," the argument that procuring a warrant would be "inconvenient" loses much, if not all, of its force. Barring an exigency, there is no reason why the police officers could not have obtained a warrant to seize this evidence before entering the premises. The rationale behind the inadvertent discovery requirement is simply that we will not excuse officers *5 from the general requirement of a warrant to seize if the officers know the location of evidence, have probable cause to seize it, intend to seize it, and yet do not bother to obtain a warrant particularly describing that evidence. To do so would violate "the express constitutional requirement of `Warrants particularly describing [the] things to be seized,' " and would "fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure." Although joined by only three other Members of the Court, Justice Stewart's discussion of the inadvertent discovery requirement has become widely accepted. See ("Whatever my view might have been when was decided, I see no reason at this late date to imply criticism of its articulation of this exception. It has been accepted generally for over a decade"). Forty-six States and the District of Columbia[2] and 12 United States Courts of Appeals[3] now require plain-view seizures to be inadvertent. There has been no outcry from law enforcement officials that the inadvertent discovery requirement unduly burdens their efforts. Given that the requirement is inescapably rooted in the plain language of the Fourth Amendment, I cannot fathom the Court's enthusiasm for discarding this element |
Justice Brennan | 1,990 | 13 | dissenting | Horton v. California | https://www.courtlistener.com/opinion/112448/horton-v-california/ | I cannot fathom the Court's enthusiasm for discarding this element of the plain-view doctrine. The Court posits two "flaws" in Justice Stewart's reasoning that it believes demonstrate the inappropriateness of the inadvertent discovery requirement. But these flaws are illusory. First, the majority explains that it can see no reason *6 why an officer who "has knowledge approaching certainty" that an item will be found in a particular location "would deliberately omit a particular description of the item to be seized from the application for a search warrant." Ante, at 138. But to the individual whose possessory interest has been invaded, it matters not why the police officer decided to omit a particular item from his application for a search warrant. When an officer with probable cause to seize an item fails to mention that item in his application for a search warrant for whatever reason and then seizes the item anyway, his conduct is per se unreasonable. Suppression of the evidence so seized will encourage officers to be more precise and complete in future warrant applications. Furthermore, there are a number of instances in which a law enforcement officer might deliberately choose to omit certain items from a warrant application even though he has probable cause to seize them, knows they are on the premises, and intends to seize them when they are discovered in plain view. For example, the warrant application process can often be time consuming, especially when the police attempt to seize a large number of items. An officer interested in conducting a search as soon as possible might decide to save time by listing only one or two hard-to-find items, such as the stolen rings in this case, confident that he will find in plain view all of the other evidence he is looking for before he discovers the listed items. Because rings could be located almost anywhere inside or outside a house, it is unlikely that a warrant to search for and seize the rings would restrict the scope of the search. An officer might rationally find the risk of immediately discovering the items listed in the warrant thereby forcing him to conclude the search immediately outweighed by the time saved in the application process. The majority also contends that, once an officer is lawfully in a house and the scope of his search is adequately circumscribed by a warrant, "no additional Fourth Amendment *7 interest is furthered by requiring that the discovery of evidence be inadvertent." Ante, at 0. Put another way, " `the inadvertence rule will in no way |
Justice Brennan | 1,990 | 13 | dissenting | Horton v. California | https://www.courtlistener.com/opinion/112448/horton-v-california/ | another way, " `the inadvertence rule will in no way reduce the number of places into which [law enforcement officers] may lawfully look.' " Ante, at 1 (quoting ). The majority is correct, but it has asked the wrong question. It is true that the inadvertent discovery requirement furthers no privacy interests. The requirement in no way reduces the scope of a search or the number of places into which officers may look. But it does protect possessory interests. Cf. (emphasis added). The inadvertent discovery requirement is essential if we are to take seriously the Fourth Amendment's protection of possessory interests as well as privacy interests. See at 3. The Court today eliminates a rule designed to further possessory interests on the ground that it fails to further privacy interests. I cannot countenance such constitutional legerdemain. II Fortunately, this decision should have only a limited impact, for the Court is not confronted today with what lower courts have described as a "pretextual" search. See, e. g., (holding pretextual searches invalid). For example, if an officer enters a house pursuant to a warrant to search for evidence of one crime when he is really interested only in seizing evidence relating to another crime, for which he does not have a warrant, his search is "pretextual" and the fruits of that search should be suppressed. See, e. g., (evidence suppressed because officers, who had ample opportunity to obtain *8 warrant relating to murder investigation, entered the premises instead pursuant to a warrant relating to a drug investigation, and searched only the hiding place of the murder weapon, rather than conducting a "top to bottom" search for drugs). Similarly, an officer might use an exception to the generally applicable warrant requirement, such as "hot pursuit," as a pretext to enter a home to seize items he knows he will find in plain view. Such conduct would be a deliberate attempt to circumvent the constitutional requirement of a warrant "particularly describing the place to be searched, and the persons or things to be seized," and cannot be condoned. The discovery of evidence in pretextual searches is not "inadvertent" and should be suppressed for that reason. But even state courts that have rejected the inadvertent discovery requirement have held that the Fourth Amendment prohibits pretextual searches. See 1 Idaho 781, ; The Court's opinion today does not address pretextual searches, but I have no doubt that such searches violate the Fourth Amendment.[4] III The Fourth Amendment demands that an individual's possessory interest in property be protected from unreasonable governmental seizures, not just by requiring a |
Justice Brennan | 1,990 | 13 | dissenting | Horton v. California | https://www.courtlistener.com/opinion/112448/horton-v-california/ | protected from unreasonable governmental seizures, not just by requiring a showing of probable cause, but also by requiring a neutral and detached *A magistrate to authorize the seizure in advance. The Court today ignores the explicit language of the Fourth Amendment, which protects possessory interests in the same manner as it protects privacy interests, in order to eliminate a generally accepted element of the plain-view doctrine that has caused no apparent difficulties for law enforcement officers. I am confident, however, that when confronted with more egregious police conduct than that found in this case, ante, at 130-131, such as pretextual searches, the Court's interpretation of the Constitution will be less parsimonious than it is today. I respectfully dissent. *B APPENDIX A STATES THAT HAVE ADOPTED THE INADVERTENT DISCOVERY REQUIREMENT Ala. Alaska Ariz. Ark. 724 S.W.2d 0, 2 Colo. Conn. 2 Conn. 62, 573 A.2d 117, 1201 (10) D. C. Fla. review denied, 3 So. 2d *150 Ga. 254 S.E.2d 337, 346, cert. denied, Haw. Ill. 520 N.E.2d 374, 380-381, cert. denied, Ind. Iowa Kan. (1) Ky. 5 S.W.2d 88, (Ky. 176) La. 35 So. 2d 7, Me. Md. 554 A.2d 6, 365 (1) Mass. Mich. 102 Mich. App. N.W.2d 20, 211-212 cert. denied, 455 U.S. 27 Minn. Miss. cert. denied, Mo. cert. denied, *151 Mont. 2 Mont. 361, 767 P.2d 864, 86 (1) Neb. 375 N.W. 2d 605, 60 Nev. 1211 N. H. State v. Cote, 126 N. H. 5, 525, 526, 43 A.2d 1170, 1177-1178 N. J. State v. Bruzzese, 4 N. J. 210, 237-238, 4 A.2d 320, 334-3 cert. denied, (184) N. M. N. Y. 41 N.Y. 2d 6, 150-151, N.E.2d 677, 681 (176) N. C. 32, cert. denied, N. D. Ohio 533 N.E. 2d 70-710 cert. denied, (10) Okla. Ore. -551, 777 P. 2d 81, 83, review denied, Ore. 405, 781 P.2d 855 (1) Pa. 3 Pa. Super. 6, 175, 566 A.2d 7, (1) *152 R. I. S. C. State v. Culbreath, 300 S. C. 232, 237, 387 S.E.2d 255, 257 (10) S. D. Tenn. 6 S.W.2d 511, Tex. (Tex. Crim. App. 1) Vt. 5 Vt. 606, 46 A.2d 451, 45-460 Va. Holloman v. Commonwealth, 221, Va. 47, 4, 275 S.E.2d 620, 621-622 Wash. 108 Wash. 2d 13, 257 W. Va. 272 S.E. 2d 804, 813-8 Wis. 11-121, 36 N.W.2d 156, 1 Wyo. APPENDIX B UNITED STATES COURTS OF APPEALS THAT HAVE ADOPTED THE INADVERTENT DISCOVERY REQUIREMENT CA1: United F.2d (10) CA2: United cert. denied, 43 U.S. 53 (1) *153 CA3: United 827 F.2d 43, 45 CA4: CA5: (1), cert. pending, No. -1326 CA6: United 5 F.2d |
Justice Thomas | 2,020 | 1 | concurring | Thole v. U. S. Bank N. A. | https://www.courtlistener.com/opinion/4757654/thole-v-u-s-bank-n-a/ | I agree with the Court’s opinion, which correctly applies our precedents and concludes that petitioners lack stand- ing. I also agree that “[c]ourts sometimes make standing law more complicated than it needs to be.” Ante, at 8. I write separately to observe that by requiring us to engage with petitioners’ analogies to trust law, our precedents un- necessarily complicate this case. The historical restrictions on standing provide a simpler framework. Article III vests “[t]he judicial Power of the United States” in the federal courts and specifies that it shall extend to enumerated categories of “Cases” and “Con- troversies.” 2. “To understand the limits that standing imposes on ‘the judicial Power,’ we must ‘refer directly to the traditional, fundamental limitations upon the powers of common-law courts.’ ” Inc. v. Robins, 578 U. S. (2016) (THOMAS, J., concurring) (slip op., at 2) (Scalia, J., dissenting)); see also Muskrat v. United States, 219 U.S. 346, 356–357 (1911) (observing that the “judicial power with the right to determine ‘cases’ and ‘controversies’ ” has long referred to “suit[s] instituted according to the regular course of judicial procedure”). “Common-law courts imposed different limitations on a 2 THOLE v. U. S. BANK N. A. THOMAS, J., concurring plaintiff ’s right to bring suit depending on the type of right the plaintiff sought to vindicate.” 578 U. S., at (THOMAS, J., concurring) (slip op., at 2). Rights were typi- cally divided into private rights and public rights. Private rights are those “ ‘belonging to individuals, considered as in- dividuals.’ ” (quoting 3 W. Commentaries *2); see also Woolhandler & Nelson, Does History Defeat Standing Doctrine? Pub- lic rights are “owed ‘to the whole community, considered as a community, in its social aggregate capacity.’ ” su- pra, at (THOMAS, J., concurring) (slip op., at 3) (quoting 4 ); see also Woolhandler & Nelson, at Petitioners claim violations of private rights under the Employee Retirement Income Security Act of 4 (ERISA). “In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury [if] his personal, legal rights [were] invaded.” at (THOMAS, J., concurring) (slip op., at 2). In this case, however, none of the rights identified by petitioners belong to them. The fiduciary duties created by ERISA are owed to the plan, not petitioners. See 29 U.S. C. 1105(a), 1106(a)(1), 1106(b), 1109(a). As par- ticipants in a defined benefit plan, petitioners have no legal or equitable ownership interest in the plan assets. See ante, at 4. There has been no assignment of the plan’s rights by ERISA or any contract. |
Justice Thomas | 2,020 | 1 | concurring | Thole v. U. S. Bank N. A. | https://www.courtlistener.com/opinion/4757654/thole-v-u-s-bank-n-a/ | assignment of the plan’s rights by ERISA or any contract. See ante, at 5. And petitioners can- not rely on ERISA Although it establishes certain causes of action, it creates no private right. See There is thus no need to analogize petitioners’ complaint to trust law actions, derivative actions, qui tam actions, or anything else. We need only recognize that the private rights that were allegedly violated do not belong to petition- ers under ERISA or any contract. Our ERISA precedents have especially complicated the Cite as: 590 U. S. (2020) 3 THOMAS, J., concurring question of standing in this case due to their misinterpre- tations of the statute. I continue to object to this Court’s practice of using the common law of trusts as the “starting point” for interpreting ERISA. Corp. v. Howe, 516 U.S. 489, 497 (1996). “[I]n ‘every case involving construc- tion of a statute,’ the ‘starting point is the language it- self.’ ” ; ellipsis in original). This is especially true for ERISA because its “statutory definition of a fiduciary departs from the com- mon law.” The Court correctly ap- plies here, but in an appropriate case, we should re- consider our reliance on loose analogies in both our standing and ERISA jurisprudence. Cite as: 590 U. S. (2020) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–1712 JAMES J. THOLE, ET AL., PETITIONERS v. U. S. BANK N. A., ET AL. |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | Section 5(e)(2) of the Federal Alcohol Administration Act prohibits beer labels from displaying alcohol We granted certiorari in this case to review the Tenth Circuit's holding that the labeling ban violates the First Amendment because it fails to advance a governmental interest in a direct and material way. Because 5(e)(2) is inconsistent with the protections granted to commercial speech by the First Amendment, we affirm. I Respondent brews beer. In 1987, respondent applied to the Bureau of Alcohol, Tobacco and Firearms (BATF), an agency of the Department of the Treasury, for approval of proposed labels and advertisements that disclosed the alcohol content of its beer. BATF rejected the application on the ground that the Federal Alcohol Administration Act (FAAA or Act), 27 U.S. C. 201 et seq. prohibited disclosure of the alcohol content of beer on labels or in advertising. Respondent then filed suit in the District *479 Court for the District of Colorado seeking a declaratory judgment that the relevant provisions of the Act violated the First Amendment; respondent also sought injunctive relief barring enforcement of these provisions. The Government took the position that the ban was necessary to suppress the threat of "strength wars" among brewers, who, without the regulation, would seek to compete in the marketplace based on the potency of their beer. The District Court granted the relief sought, but a panel of the Court of Appeals for the Tenth Circuit reversed and remanded. Adolph Coors Applying the framework set out in Central Gas & Elec. the Court of Appeals found that the Government's interest in suppressing alcoholic "strength wars" was "substantial." It further held, however, that the record provided insufficient evidence to determine whether the FAAA's ban on disclosure "directly advanced" that interest. at 1549-1551. The court remanded for further proceedings to ascertain whether a "`reasonable fit' " existed between the ban and the goal of avoiding strength wars. After further factfinding, the District Court upheld the ban on the disclosure of alcohol content in advertising but invalidated the ban as it applied to labels. Although the Government asked the Tenth Circuit to review the invalidation of the labeling ban, respondent did not appeal the court's decision sustaining the advertising ban. On the case's second appeal, the Court of Appeals affirmed the District Court. Adolph Coors Following our recent decision in the Tenth Circuit asked whether the Government had shown that the "`challenged regulation advances [the Government's] interests in a direct and material way.' " (quoting ). After reviewing the record, the Court of Appeals concluded that the Government *480 had failed to demonstrate that |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | concluded that the Government *480 had failed to demonstrate that the prohibition in any way prevented strength wars. The court found that there was no evidence of any relationship between the publication of factual information regarding alcohol content and competition on the basis of such -359. We granted certiorari, to review the Tenth Circuit's decision that 205(e)(2) violates the First Amendment. We conclude that the ban infringes respondent's freedom of speech, and we therefore affirm. II A Soon after the ratification of the Twenty-first Amendment, which repealed the Eighteenth Amendment and ended the Nation's experiment with Prohibition, Congress enacted the FAAA. The statute establishes national rules governing the distribution, production, and importation of alcohol and established a Federal Alcohol Administration to implement these rules. Section 5(e)(2) of the Act prohibits any producer, importer, wholesaler, or bottler of alcoholic beverages from selling, shipping, or delivering in interstate or foreign commerce any malt beverages, distilled spirits, or wines in bottles "unless such products are bottled, packaged, and labeled in conformity with such regulations, to be prescribed by the Secretary of the Treasury, with respect to packaging, marking, branding, and labeling and size and fill of container as will provide the consumer with adequate information as to the identity and quality of the products, the alcoholic content thereof (except that statements of, or statements likely to be considered as statements of, alcoholic content of malt beverages are prohibited unless required by State law and except that, in case of wines, statements of alcoholic content shall be required only for wines containing more than 14 per centum of alcohol by volume), the net contents of *481 the package, and the manufacturer or bottler or importer of the product." 27 U.S. C. 205(e)(2) (emphasis added). The Act defines "`malt beverage[s]' " in such a way as to include all beers and ales. 211(a)(7). Implementing regulations promulgated by BATF (under delegation of authority from the Secretary of the Treasury) prohibit the disclosure of alcohol content on beer labels. 27 CFR 7.26(a)[1] In addition to prohibiting numerical indications of alcohol content, the labeling regulations proscribe descriptive terms that suggest high content, such as "strong," "full strength," "extra strength," "high test," "high proof," "pre-war strength," and "full old time alcoholic strength." 7.29(f). The prohibitions do not preclude labels from identifying a beer as "low alcohol," "reduced alcohol," "non-alcoholic," or "alcohol-free." Ib; see also 7.26(b)(d). By statute and by regulation, the labeling ban must give way if state law requires disclosure of alcohol B Both parties agree that the information on beer labels constitutes commercial speech. Though we once |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | information on beer labels constitutes commercial speech. Though we once took the position that the First Amendment does not protect commercial speech, see we repudiated that position in Virginia Bd. of There we noted that the free flow of commercial information is "indispensable to the proper allocation of resources in a free enterprise system" because it informs the numerous private decisions that drive the system. at 765. Indeed, we observed that a "particular consumer's interest in the *482 free flow of commercial information may be as keen, if not keener by far, than his interest in the day's most urgent political debate." at 763. Still, Virginia Board of Pharmacy suggested that certain types of restrictions might be tolerated in the commercial speech area because of the nature of such speech. See -772, n. 24. In later decisions we gradually articulated a test based on "`the "commonsense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.' " Central ). Central identified several factors that courts should consider in determining whether a regulation of commercial speech survives First Amendment scrutiny: "For commercial speech to come within [the First Amendment], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." We now apply Central `s test to 205(e)(2).[2] *483 III Both the lower courts and the parties agree that respondent seeks to disclose only truthful, verifiable, and nonmisleading factual information about alcohol content on its beer labels. Thus, our analysis focuses on the substantiality of the interest behind 205(e)(2) and on whether the labeling ban bears an acceptable fit with the Government's goal. A careful consideration of these factors indicates that 205(e)(2) violates the First Amendment's protection of commercial speech. A The Government identifies two interests it considers sufficiently "substantial" to justify 205(e)(2)'s labeling ban. First, the Government contends that 205(e)(2) advances Congress' goal of curbing "strength wars" by beer brewers who might seek to compete for customers on the basis of alcohol According to the Government, the FAAA's restriction prevents a particular type of beer drinkerone *484 who selects a beverage because of its high potencyfrom choosing beers solely for their alcohol In the Government's view, restricting disclosure of information regarding a particular product characteristic will decrease the extent to which consumers will select the product |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | decrease the extent to which consumers will select the product on the basis of that characteristic. Respondent counters that Congress actually intended the FAAA to achieve the far different purpose of preventing brewers from making inaccurate claims concerning alcohol According to respondent, when Congress passed the FAAA in 1935, brewers did not have the technology to produce beer with alcohol levels within predictable tolerancesa skill that modern beer producers now possess. Further, respondent argues that the true policy guiding federal alcohol regulation is not aimed at suppressing strength wars. If such were the goal, the Government would not pursue the opposite policy with respect to wines and distilled spirits. Although 205(e)(2) requires BATF to promulgate regulations barring the disclosure of alcohol content on beer labels, it also orders BATF to require the disclosure of alcohol content on the labels of wines and spirits. See 27 CFR 4.36 ; 5.37 (distilled spirits). Rather than suppressing the free flow of factual information in the wine and spirits markets, the Government seeks to control competition on the basis of strength by monitoring distillers' promotions and marketing. Respondent quite correctly notes that the general thrust of federal alcohol policy appears to favor greater disclosure of information, rather than less. This also seems to be the trend in federal regulation of other consumer products as well. See, e. g., Nutrition Labeling and Education Act of 1990, Stat. 2353, as amended (requiring labels of food products sold in the United States to display nutritional information). Respondent offers a plausible reading of the purpose behind 205(e)(2), but the prevention of misleading statements of alcohol content need not be the exclusive Government interest *485 served by 205(e)(2). In Posadas de Puerto Rico we found that the Puerto Rico Legislature's interest in promoting the health, safety, and welfare of its citizens by reducing their demand for gambling provided a sufficiently "substantial" governmental interest to justify the regulation of gambling advertising. So too the Government here has a significant interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis of alcohol strength, which could lead to greater alcoholism and its attendant social costs. Both panels of the Court of Appeals that heard this case concluded that the goal of suppressing strength wars constituted a substantial interest, and we cannot say that their conclusion is erroneous. We have no reason to think that strength wars, if they were to occur, would not produce the type of social harm that the Government hopes to prevent. The Government attempts to bolster its position by |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | to prevent. The Government attempts to bolster its position by arguing that the labeling ban not only curbs strength wars, but also "facilitates" state efforts to regulate alcohol under the Twenty-first Amendment. The Solicitor General directs us to United in which we upheld a federal law that prohibited lottery advertising by radio stations located in States that did not operate lotteries. That case involved a station located in North Carolina (a nonlottery State) that broadcast lottery advertisements primarily into Virginia (a State with a lottery). We upheld the statute against First Amendment challenge in part because it supported North Carolina's antigambling policy without unduly interfering with States that sponsored lotteries. at 431-435. In this case, the Government claims that the interest behind 205(e)(2) mirrors that of the statute in Edge Broadcasting because it prohibits disclosure of alcohol content only in States that do not affirmatively require brewers to provide that information. In the Government's view, this saves States that might wish to *486 ban such labels the trouble of enacting their own legislation, and it discourages beer drinkers from crossing state lines to buy beer they believe is stronger. We conclude that the Government's interest in preserving state authority is not sufficiently substantial to meet the requirements of Central Even if the Federal Government possessed the broad authority to facilitate state powers, in this case the Government has offered nothing that suggests that States are in need of federal assistance. States clearly possess ample authority to ban the disclosure of alcohol contentsubject, of course, to the same First Amendment restrictions that apply to the Federal Government. Unlike the situation in Edge Broadcasting, the policies of some States do not prevent neighboring States from pursuing their own alcohol-related policies within their respective borders. One State's decision to permit brewers to disclose alcohol content on beer labels will not preclude neighboring States from effectively banning such disclosure of that information within their borders. B The remaining Central factors require that a valid restriction on commercial speech directly advance the governmental interest and be no more extensive than necessary to serve that interest. We have said that "[t]he last two steps of the Central analysis basically involve a consideration of the `fit' between the legislature's ends and the means chosen to accomplish those ends." Posadas, at The Tenth Circuit found that 205(e)(2) failed to advance the interest in suppressing strength wars sufficiently to justify the ban. We agree. Just two Terms ago, in we had occasion to explain the Central factor concerning whether the regulation of commercial speech "directly advances the governmental interest |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | the regulation of commercial speech "directly advances the governmental interest asserted." Central In we decided *487 that the Government carries the burden of showing that the challenged regulation advances the Government's interest "in a direct and material way." That burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." at 770-771. We cautioned that this requirement was critical; otherwise, "a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression." The Government attempts to meet its burden by pointing to current developments in the consumer market. It claims that beer producers are already competing and advertising on the basis of alcohol strength in the "malt liquor" segment of the beer market.[3] The Government attempts to show that this competition threatens to spread to the rest of the market by directing our attention to respondent's motives in bringing this litigation. Respondent allegedly suffers from consumer misperceptions that its beers contain less alcohol than other brands. According to the Government, once respondent gains relief from 205(e)(2), it will use its labels to overcome this handicap. Under the Government's theory, 205(e)(2) suppresses the threat of such competition by preventing consumers from choosing beers on the basis of alcohol It is assuredly a matter of "common sense," Brief for Petitioner 27, that a restriction on the advertising of a product characteristic will decrease the extent to which consumers select a product on the basis of that trait. In addition to common sense, the Government urges us to turn to history as a guide. According *488 to the Government, at the time Congress enacted the FAAA, the use of labels displaying alcohol content had helped produce a strength war. Section 205(e)(2) allegedly relieved competitive pressures to market beer on the basis of alcohol content, resulting over the long term in beers with lower alcohol levels. We conclude that 205(e)(2) cannot directly and materially advance its asserted interest because of the overall irrationality of the Government's regulatory scheme. While the laws governing labeling prohibit the disclosure of alcohol content unless required by state law, federal regulations apply a contrary policy to beer advertising. 27 U.S. C. 205(f)(2); 27 CFR 7.50 Like 205(e)(2), these restrictions prohibit statements of alcohol content in advertising, but, unlike 205(e)(2), they apply only in States that affirmatively prohibit such advertisements. As only 18 States at best |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | affirmatively prohibit such advertisements. As only 18 States at best prohibit disclosure of content in advertisements, App. to Brief for Respondent 1a12a, brewers remain free to disclose alcohol content in advertisements, but not on labels, in much of the country. The failure to prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war than labels, makes no rational sense if the Government's true aim is to suppress strength wars. Other provisions of the FAAA and its regulations similarly undermine 205(e)(2)'s efforts to prevent strength wars. While 205(e)(2) bans the disclosure of alcohol content on beer labels, it allows the exact opposite in the case of wines and spirits. Thus, distilled spirits may contain statements of alcohol content, 27 CFR 5.37 and such disclosures are required for wines with more than 14 percent alcohol, 27 CFR 4.36 If combating strength wars were the goal, we would assume that Congress would regulate disclosure of alcohol content for the strongest beverages as well as for the weakest ones. Further, the Government permits brewers to signal high alcohol content through use *489 of the term "malt liquor." Although the Secretary has proscribed the use of various colorful terms suggesting high alcohol levels, 27 CFR 7.29(f) manufacturers still can distinguish a class of stronger malt beverages by identifying them as malt liquors. One would think that if the Government sought to suppress strength wars by prohibiting numerical disclosures of alcohol content, it also would preclude brewers from indicating higher alcohol beverages by using descriptive terms. While we are mindful that respondent only appealed the constitutionality of 205(e)(2), these exemptions and inconsistencies bring into question the purpose of the labeling ban. To be sure, the Government's interest in combating strength wars remains a valid goal. But the irrationality of this unique and puzzling regulatory framework ensures that the labeling ban will fail to achieve that end. There is little chance that 205(e)(2) can directly and materially advance its aim, while other provisions of the same Act directly undermine and counteract its effects. This conclusion explains the findings of the courts below. Both the District Court and the Court of Appeals found that the Government had failed to present any credible evidence showing that the disclosure of alcohol content would promote strength wars. In the District Court's words, "none of the witnesses, none of the depositions that I have read, no credible evidence that I have heard, lead[s] me to believe that giving alcoholic content on labels will in any way promote. strength wars." App. to |
Justice Thomas | 1,995 | 1 | majority | Rubin v. Coors Brewing Co. | https://www.courtlistener.com/opinion/117924/rubin-v-coors-brewing-co/ | labels will in any way promote. strength wars." App. to Pet. for Cert. A-38. See also Indeed, the District Court concluded that "[p]rohibiting the alcoholic content disclosure of malt beverages on labels has little, if anything, to do with the type of advertising that promotes strength wars." App. to Pet. for Cert. A-36.[4] As the FAAA's exceptions and regulations *490 would have counteracted any effect the labeling ban had exerted, it is not surprising that the lower courts did not find any evidence that 205(e)(2) had suppressed strength wars. The Government's brief submits anecdotal evidence and educated guesses to suggest that competition on the basis of alcohol content is occurring today and that 205(e)(2)'s ban has constrained strength wars that otherwise would burst out of control. These various tidbits, however, cannot overcome the irrationality of the regulatory scheme and the weight of the record. The Government did not offer any convincing evidence that the labeling ban has inhibited strength wars. Indeed, it could not, in light of the effect of the FAAA's other provisions. The absence of strength wars over the past six decades may have resulted from any number of factors. Nor do we think that respondent's litigating positions can be used against it as proof that the Government's regulation is necessary. That respondent wishes to disseminate factual information concerning alcohol content does not demonstrate that it intends to compete on the basis of alcohol Brewers may have many different reasonsonly one of which might be a desire to wage a strength warwhy they wish to disclose the potency of their beverages. Even if 205(e)(2) did meet the standard, it would still not survive First Amendment scrutiny because the Government's regulation of speech is not sufficiently tailored to its goal. The Government argues that a sufficient "fit" exists here because the labeling ban applies to only one product characteristic and because the ban does not prohibit all disclosures of alcohol contentit applies only to those involving labeling and advertising. In response, respondent suggests several alternatives, such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing *491 high alcohol strength (which is apparently the policy in some other western nations), or limiting the labeling ban only to malt liquors, which is the segment of the market that allegedly is threatened with a strength war. We agree that the availability of these options, all of which could advance the Government's asserted interest in a manner less intrusive to respondent's First Amendment rights, indicates that 205(e)(2) is more extensive than necessary. IV In sum, although the Government may have |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | As I agree that the holding in this case is dictated by the language and legislative history of Title IX, and the regulations of the Department of Education, I join the Court's decisio I do so reluctantly and write briefly to record my view that the case is an unedifying example of overzealousness on the part of the Federal Government. Grove City College (Grove City) may be unique among colleges in our country; certainly there are few others like it. Founded more than a century ago in 1876, Grove City is an independent, coeducational liberal arts college. It describes itself as having "both a Christian world view and a freedom philosophy," perceiving these as "interrelated." App. A-22. At the time of this suit, it had about 2,200 students and tuition was surprisingly low for a private college.[1] Some 140 of the College's students were receiving Basic Educational Opportunity Grants (BEOG's),[2] and 342 had obtained Guaranteed Student Loans (GSL's).[3] The grants were made directly to the students through the Department of Education, and the student loans were guaranteed by the Federal Government. Apart from this indirect assistance, Grove City has followed an unbending policy of refusing all forms of government assistance, whether federal, state, or local. It was and is the policy of this small college to remain wholly independent *577 of government assistance, recognizing as this case well illustrates that with acceptance of such assistance one surrenders a certain measure of the freedom that Americans always have cherished. This case involves a regulation adopted by the Department to implement 901 (a) of Title IX (20 U.S. C. 1681(a)). It is well to bear in mind what 901(a) provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance" The sole purpose of the statute is to make unlawful "discrimination" by recipients of federal financial assistance on the "basis of sex." The undisputed fact is that Grove City does not discriminate and so far as the record in this case shows never has discriminated against anyone on account of sex, race, or national origi This case has nothing whatever to do with discrimination past or present. The College therefore has complied to the letter with the sole purpose of 901(a). As the Court describes, the case arises pursuant to a regulation adopted under Title IX that authorizes the Secretary to obtain from recipients of federal aid an "Assurance of Compliance" |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | obtain from recipients of federal aid an "Assurance of Compliance" with Title IX and regulations issued thereunder. At the outset of this litigation, the Department insisted that by accepting students who received BEOG awards, Grove City's entire institution was subject to regulation under Title IX. The College, in view of its policies and principles of independence and its record of nondiscrimination, objected to executing this Assurance. One would have thought that the Department, confronted as it is with cases of national importance that involve actual discrimination, would have respected the independence and admirable record of this College. But common sense and good judgment failed to prevail. *578 The Department chose to litigate, and instituted an administrative proceeding to compel Grove City to execute an agreement to operate all of its programs and activities in full compliance with all of the regulations promulgated under Title IX despite the College's record as an institution that had operated to date in full accordance with the letter and spirit of Title IX. The Administrative Law Judge who heard the case on September 15, 1978, did not relish his task. On the basis of the evidence, which included the formal published statement of Grove City's strong "nondiscrimination policy," he stated: "It should also be noted that there was not the slightest hint of any failure to comply with Title IX save the refusal to submit an executed assurance of compliance with Title IX. This refusal is obviously a matter of conscience and belief." App. to Pet. for Cert. A-94 (emphasis added).[4] The Administrative Law Judge further evidenced his reluctance by emphasizing that the regulations were "binding" upon him. at A-95. He concluded that the scholarship grants and student loans to Grove City constituted indirect "federal financial assistance," and in view of the failure of Grove City to execute the Assurance, the regulation required that the grants and loans to its students must be "terminated." at A-96. The College and four of its students then instituted this suit in 1978 challenging the validity of the regulations and seeking a declaratory judgment. The effect of the Department's termination of the student grants and loans would not have been limited to the College itself. Indeed, the most direct effect would have been upon the students themselves. Absent the availability of other scholarship funds, many of them would have had to abandon their college education or choose another school. It was to *579 avoid these serious consequences, that this suit was instituted. The College prevailed in the District Court but lost in the Court of Appeals. Only after |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | Court but lost in the Court of Appeals. Only after Grove City had brought its case before this Court, did the Department retreat to its present position that Title IX applies only to Grove City's financial aid office. On this narrow theory, the Department has prevailed, having taken this small independent college, which it acknowledges has engaged in no discrimination whatever, through six years of litigation with the full weight of the Federal Government opposing it. I cannot believe that the Department will rejoice in its "victory." JUSTICE STEVENS, concurring in part and concurring in the result. For two reasons, I am unable to join Part III of the Court's opinio First, it is an advisory opinion unnecessary to today's decision, and second, the advice is predicated on speculation rather than evidence. The controverted issue in this litigation is whether Grove City College may be required to execute the "Assurance of Compliance with Title IX" tendered to it by the Secretary in order to continue receiving the benefits of the federal financial assistance provided by the BEOG program. The Court of Appeals affirmed the District Court's decision that Grove City is a "recipient" of federal financial assistance, and reversed its decision that the Secretary could not terminate federal financial assistance because Grove City refused to execute the Assurance. The Court today holds (in Part II of its opinion) that Grove City is a recipient of federal financial assistance within the meaning of Title IX, and (in Part IV) that Grove City must execute the Assurance of Compliance in order to continue receiving that assistance. These holdings are fully sufficient to sustain the judgment the Court reviews, as the Court acknowledges by affirming that judgment. In Part III of its opinion, the Court holds that Grove City is not required to refrain from discrimination on the basis of *580 sex except in its financial aid program. In so stating, the Court decides an issue that is not in dispute. The Assurance of Compliance merely requires that it comply with Title IX "to the extent applicable to it." See ante, at 560. The Secretary, who is responsible for administering Title IX, construes the statute as applicable only to Grove City's financial aid program. All the Secretary seeks is a judgment that Title IX requires Grove City to promise not to discriminate in its financial aid program. The Court correctly holds that this program is subject to the requirements of Title IX, and that Grove City must promise not to discriminate in its operation of the program. But, there is no reason for |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | operation of the program. But, there is no reason for the Court to hold that Grove City need not make a promise that the Secretary does not ask it to make, and that it in fact would not be making by signing the Assurance, in order to continue to receive federal financial assistance. It will be soon enough to decide the question discussed in Part III when and if the day comes that the Secretary asks Grove City to make some further promise in order to continue to receive federal financial assistance. Moreover, the record in this case is far from adequate to decide the question raised in Part III. See Consolidated Rail Corp. v. Darrone, post, at 635-636. Assuming for the moment that participation in the BEOG program could not in itself make Title IX applicable to the entire institution, a factual inquiry is nevertheless necessary as to which of Grove City's programs and activities can be said to receive or benefit from federal financial assistance. This is the import of the applicable regulation, upheld by the Court today, ante, at 574-575, which states that Title IX applies "to every recipient and to each education program or activity operated by such recipient which receives or benefits from Federal financial assistance." 34 CFR 106.11 (1983). The Court overlooks the fact that the regulation is in the disjunctive; Title IX coverage does not always depend on the actual receipt of federal financial assistance by a given program or activity. The record does not tell us how important the BEOG program *581A is to Grove City, in either absolute or relative terms; nor does it tell us anything about how the benefits of the program are allocated within the institutio The Court decides that a small scholarship for just one student should not subject the entire school to coverage. Ante, at 572-573. But why should this case be judged on the basis of that hypothetical example instead of a different one? What if the record showed and I do not suggest that it does that all of the BEOG money was reserved for, or merely happened to be used by, talented athletes and that their tuition payments were sufficient to support an entire athletic program that would otherwise be abandoned? Would such a hypothetical program be covered by Title IX?[*] And if this athletic program discriminated on the basis of sex, could it plausibly be contended that Congress intended that BEOG money could be used to enable such a program to survive? Until we know something about the character of |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | to survive? Until we know something about the character of the particular program, it is inappropriate to give advice about an issue that is not before us. Accordingly, while I subscribe to the reasoning in Parts I, II, IV, and V of the Court's opinion, I am unable to join Part III. *581B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. The Court today concludes that Grove City College is "receiving Federal financial assistance" within the meaning of Title IX of the Education Amendments of 1972, 20 U.S. C. *582 1681(a), because a number of its students receive federal education grants. As the Court persuasively demonstrates in Part II of its opinion, that conclusion is dictated by "the need to accord [Title IX] a sweep as broad as its language," ante, at 564; by reference to the analogous statutory language and legislative history of Title VI of the Civil Rights Act of 1964, ante, at 566; by reliance on the unique postenactment history of Title IX, ante, at 567-; and by recognition of the strong congressional intent that there is no "substantive difference between direct institutional assistance and aid received by a school through its students," ante, at 564, 565-566, 569-570, and n 12-14, 19. For these same reasons, however, I cannot join Part III of the Court's opinion, in which the Court interprets the language in Title IX that limits application of the statute to "any education program or activity" receiving federal moneys. By conveniently ignoring these controlling indicia of congressional intent, the Court also ignores the primary purposes for which Congress enacted Title IX. The result allowing Title IX coverage for the College's financial aid program, but rejecting institutionwide coverage even though federal moneys benefit the entire College may be superficially pleasing to those who are uncomfortable with federal intrusion into private educational institutions, but it has no relationship to the statutory scheme enacted by Congress. I The Court has twice before had occasion to ascertain the precise scope of Title IX. See North Board of ; In both cases, the Court emphasized the broad congressional purposes underlying enactment of the statute. In while holding that Title IX confers a private cause of action on individual plaintiffs, we noted that the primary congressional purpose behind the statute was "to avoid the use of federal resources to support discriminatory practices," and that this purpose "is generally *583 served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices." In North while holding that employment |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | engaged in discriminatory practices." In North while holding that employment discrimination is within the reach of Title IX, we expressed "no doubt that `if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language.' " ). And although we acknowledged that an agency's authority "both to promulgate regulations and to terminate funds is subject to the program-specific limitation of 901 and 902," we explicitly refused to define "program" at that time, When reaching that question today,[1] the Court completely disregards the broad remedial purposes of Title IX that consistently have controlled our prior interpretations of this civil rights statute. Moreover, a careful examination of the statute's legislative history, the accepted meaning of similar statutory language in Title VI, and the postenactment history of Title IX will demonstrate that the Court's narrow definition of "program or activity" is directly contrary to congressional intent. A The statute that was eventually enacted as Title IX had its genesis in separate proposals considered by the House and the Senate, in 1970 and 1971, respectively. In the House, the Special Subcommittee on Education, under the leadership of Representative Edith Green, held extensive hearings during the summer of 1970 on "Discrimination Against *584 Wome" See Hearings on 805 of H. R. 16098 before the Special Subcommittee on Education of the House Committee on Education and Labor, 91st Cong., 2d Sess. (1970 Hearings). At that time, the Subcommittee was considering a package of legislation that included a simple amendment adding the word "sex" to the list of discriminations prohibited by Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d.[2] See North ; Testimony offered during those hearings, however, focused on the evidence of pervasive sex discrimination in educational institutions.[3] It therefore was not surprising that the version of the Subcommittee's *585 proposal that was eventually passed by the full House was limited in its application to federally assisted education programs or activities. See 117 Cong. Rec. 39248-39261, 39353-39354 (1971). More important for present purposes, however, the House-passed bill retained the overall format of the Subcommittee proposal, and therefore continued to incorporate the "program or activity" language and its enforcement provisions from Title VI. In the Senate, action began on Title IX in 1971, when Senator Bayh first introduced a floor amendment to the comprehensive education legislation then being considered. Amendment No. 398 to Higher Education Act of 1971, reprinted in 117 Cong. Rec. 30156 (1971). As then written, Senator Bayh's proposal was clearly intended to cover an entire institution whenever |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | proposal was clearly intended to cover an entire institution whenever any education program or activity conducted by that institution was receiving federal moneys. In particular, the amendment expressly prohibited discrimination on the basis of sex "under any program or activity conducted by a public institution of higher education, or any school or department of graduate education, which is a recipient of Federal financial assistance for any education program or activity." As explained by its sponsor, the amendment would have prohibited sex discrimination "by any public institution of higher education or any institution of graduate education receiving Federal educational financial assistance."[4] The 1971 amendment was eventually ruled nongermane, so Senator Bayh was forced to renew his efforts during the next sessio When reintroduced, the amendment had been modified to conform in substantial part with the version of Title IX that had been passed by the House. See 118 Cong. Rec. 5803 (1972). This change was apparently made to ensure adoption of the antidiscrimination provisions by the Conference Committee that would soon *586 convene. See ("As [Senator Bayh] knows, I said to him earlier that I intended to support the position he has advocated in conference with the House. He has chosen to bring the amendment before the Senate now"). There is thus nothing to suggest that the Senate had retreated from the underlying premise of the original amendment proposed by Senator Bayh in 1971 that sex discrimination would be prohibited in any educational institution receiving federal financial assistance. Indeed, Senator Bayh's willingness to conform the language of his amendment to the bill already enacted by the House proved successful, as Title IX was approved by the Conference Committee, see S. Conf. Rep. No. 92-798, pp. 221-222 (1972), and enacted into law. In sum, although the contemporaneous legislative history does not definitively explain the intended meaning of the program-specific language included in Title IX, it lends no support to the interpretation adopted by the Court. What is clear, moreover, is that Congress intended enforcement of Title IX to mirror the policies and procedures utilized for enforcement under Title VI. B "Title IX was patterned after Title VI of the Civil Rights Act of 1964." Except for the substitution of the word "sex" in Title IX to replace the words "race, color, or national origin" in Title VI, and for the limitation of Title IX to "education" programs or activities, the two statutes use identical language to describe their scope. The interpretation of this critical language as it already existed under Title VI is therefore crucial to an understanding of congressional intent |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | VI is therefore crucial to an understanding of congressional intent in 1972 when Title IX was enacted using the same language. The voluminous legislative history of Title VI is not easy to comprehend, especially when one considers the emotionally and politically charged atmosphere operating at the time of its enactment. And there are no authoritative committee reports *587 explaining the many compromises that were eventually enacted, including the program-specific limitations that found their way into Title VI. Moreover, as might be expected, statements were made by various Members of Congress that can be cited to support a whole range of definitions for the "program or activity" language. For every instance in which a legislator equated the word "program" with a particular grant statute,[5] there is an example of a legislator defining "program or activity" more broadly.[6] Without completely canvassing several volumes of the Congressional Record, I believe it is safe to say that, by including the programmatic language in Title VI, Congress sought to allay fears on the part of many legislators that one isolated violation of the statute's antidiscrimination provisions would result in the wholesale termination of federal funds. In particular, "Congress was primarily concerned with two facets of the termination power: the possibility that noncompliance in a single school district might lead to termination of funds to the entire state; and the possibility that discrimination in the education program might result in the termination of federal assistance to unrelated federally financed programs, such as highways." Comment, See See also But even accepting that there is some uncertainty concerning the 1964 understanding of "program or activity," we need not be overly concerned with whatever doubt surrounds the precise intent, if any, of the 88th Congress. For what is crucial in ascertaining the meaning of the program-specific language *588 included in Title IX is the understanding that the 92d Congress had at the time it enacted the identical language. Cf. And there were two principal indicators of the accepted interpretation of the program-specific language in Title VI that were available to Members of Congress in 1972 when Title IX was enacted the existing administrative regulations promulgated under Title VI, and the available judicial decisions that had already interpreted those provisions. The Title VI regulations first issued by the Department of Health, Education, and Welfare during the 1960's, and remaining in effect during 1972, could not have been clearer in the way they applied to educational institutions. See generally 45 CFR pt. 80 (1972). For example, 80.4(d) explained the assurances required from, among others, institutions of higher education that received |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | required from, among others, institutions of higher education that received federal financial assistance: "(d) Assurances from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research, for a special training project, for a student loan program, or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students. "(2) The assurance required with respect to an institution of higher education, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students,. or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution unless the applicant establishes, to the satisfaction of the responsible Department official, that the institution's practices in designated parts or programs of the institution will in no way affect its practices in the program of the institution for *589 which Federal financial assistance is sought, or the beneficiaries of or participants in such program. If in any such case the assistance sought is for the construction of a facility or part of a facility, the assurance shall in any event extend to the entire facility and to facilities operated in connection therewith." (Emphasis added.) A list of illustrative applications followed that further demonstrated the broad scope of these regulations. One of the illustrations was aimed particularly at institutions of higher education: "In a research, training, demonstration, or other grant to a university for activities to be conducted in a graduate school, discrimination in the admission and treatment of students in the graduate school is prohibited, and the prohibition extends to the entire university unless it satisfies the responsible Department official that practices with respect to other parts or programs of the university will not interfere, directly or indirectly, with fulfillment of the assurance required with respect to the graduate school." 80.5(c).[7] *590 It must have been clear to the Congress enacting Title IX, therefore, that the administrative interpretation of that statute would follow a similarly expansive approach. Nothing in the legislative history suggests otherwise; and "[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law." -697. Nor were there any outstanding court decisions in 1972 that would have led Congress to believe that Title VI was much narrower in scope. The principal judicial interpretations of Title VI prior to 1972 were announced by the United States Court of Appeals for the |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | announced by the United States Court of Appeals for the Fifth Circuit. In a school desegregation case, for example, the court expressly approved the Department's desegregation guidelines, while noting the broad purposes underlying the prohibitory section of Title VI. United adopted en banc, (" `The legality is based on the general power of Congress to apply reasonable conditions. In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color or national origin by granting money and other kinds of financial aid' ") (quoting Cong. Celler). In another desegregation case, the court noted that Title VI "states a reasonable condition that the United States may attach to any grant of financial assistance and may enforce by refusal or withdrawal of federal assistance." Bossier School More significantly, the court went on to equate a local school system with a "program or activity" receiving federal aid, noting that the "School Board accepted federal financial assistance in November 1964, and thereby brought its school system within the class of programs subject to the section 601 prohibition against discriminatio" Finally, in Board of Public the court spoke more directly to the *591 program-specific limitation in Title VI. Although the court refused "to assume that defects in one part of a school system automatically infect the whole," and rejected the definition of the term "program" offered by the Department, the court also noted that "the purpose of the Title VI cutoff is best effectuated by separate consideration of the use or intended use of federal funds under each grant statute," In particular, although "there will be cases from time to time where a particular program, within a state, within a county, within a district, even within a school is effectively insulated from otherwise unlawful activities," termination of federal funds is proper if they "are administered in a discriminatory manner, or if they support a program which is infected by a discriminatory environment." To this end, the court remanded the case to the Department for specific findings on the relationship, if any, between the three types of federal grants received by the school system (federal aid for the education of children from low-income families, for supplementary education centers, and for adult education) and the system's discriminatory practices. In short, the judicial interpretations of Title VI existing in 1972 were either in agreement with the expansive reach of the Department's regulations, Bossier Jefferson or sanctioned a broad-based termination of federal aid if the funded programs were affected by discriminatory practices, See also Note, 55 Geo. L. J. 325, |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | discriminatory practices, See also Note, 55 Geo. L. J. 325, 344-345 (supporting Department's treatment of a school district as an individual program). Cf. Like the existing administrative regulations, therefore, they provide strong support for the view that Congress intended an expansive interpretation of the program-specific language included in Title IX. Because Members of Congress "repeated[ly] refer[red] to Title VI and *592 its modes of enforcement, we are especially justified in presuming both that those representatives were aware of the prior interpretation of Title VI and that that interpretation reflects their intent with respect to Title IX." at C If any doubt remains about the congressional intent underlying the program-specific language included in Title IX, it is removed by the unique postenactment history of the statute. "Although postenactment developments cannot be accorded `the weight of contemporary legislative history, we would be remiss if we ignored these authoritative expressions concerning the scope and purpose of Title IX.' " North (quoting ). See also ante, at 567-. Regulations promulgated by the Department to implement Title IX, both as proposed, and as finally adopted, (1975), included an interpretation of program specificity consistent with the view of Title VI and with the congressional intent behind Title IX outlined above. In particular, the regulations prohibited sex discrimination "under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives or benefits from Federal financial assistance." (now codified at 34 CFR 106.31 (1983)). Introductory remarks explained the basis for the agency's decision: "[T]itle IX will be consistent with the interpretation of similar language contained in title VI of the Civil Rights Act of 1964. Therefore, an education program or activity or part thereof operated by a recipient of Federal financial assistance administered by the Department will be subject to the requirements of this regulation if it receives or benefits from such assistance.[[8]] This interpretation *593 is consistent with the only case specifically ruling on the language contained in title VI, which holds that Federal funds may be terminated under title VI upon a finding that they `[are] infected by a discriminatory environment.' " (quoting 414 F. 2d, -1079). Thus, the agency charged with the statute's implementation initially interpreted the program-specific language of Title IX in a manner consistent with the view of Congress' intent outlined above to allow for application of the statute to an entire institution if the institution is comprised of education programs or activities that receive or benefit from federal moneys. Moreover, pursuant to 431(d)(1) of the General Education Provisions Act, as amended by Stat. 567, |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | the General Education Provisions Act, as amended by Stat. 567, these regulations were submitted to Congress for review. As we explained in North (quoting 20 U.S. C. 1232(d)(1)), this "laying before" procedure afforded Congress an opportunity to disapprove any regulation that it found to be "inconsistent with the Act from which it derives its authority." And although the regulations interpreting the program-specific limitations of Title IX were explicitly considered by both Houses of Congress, no resolutions of disapproval were passed by the Legislature. In particular, two resolutions to invalidate the Department's regulations were proposed in the Senate, each specifically challenging the regulations because of the program-specificity *594 requirements of Title IX. One resolution would have provided a blanket disapproval of the regulations, S. Co Res. 46, 94th Cong., 1st Sess. (1975), premised in part on the view that "[t]he regulations are inconsistent with the enactment in that they apply to programs or activities not receiving Federal funds such as athletics and extracurricular activities," 121 Cong. Rec. 17300 (1975) (remarks of Se Helms). The other resolution was aimed more particularly at the regulation of athletic programs and activities not receiving direct federal moneys, but also was premised on the program-specific limitations in the statute. See S. Co Res. 52, 94th Cong., 1st Sess. (1975).[9] Neither resolution, *595 however, was acted upon after referral to the appropriate Committee. In the House, extensive hearings were held by two separate Subcommittees of the Committee on Education and Labor. Of primary interest are the six days of hearings held by the Subcommittee on Postsecondary Education to review the Department's regulations "solely to see if they are consistent with the law and with the intent of the Congress in enacting the law." See Sex Discrimination Regulations: Hearings before the Subcommittee on Postsecondary Education of the House Committee on Education and Labor, 94th Cong., 1st Sess., 1 (1975) (1975 Hearings) (remarks of Rep. O'Hara). Among the numerous witnesses testifying about the programmatic reach of the Department's regulations were Senator Bayh, the chief Senate sponsor of the legislation, see and HEW Secretary Weinberger. Both strongly supported the scope of the regulations as consistent with the intent evidenced by the 92d Congress in 1972. See, e. g., 1975 Hearings, at 169-171 (statement of Se Bayh); ; ;[10] Specifically focusing on *596 the legal basis for the Department's regulations, the Secretary noted: "One of the places you look for guidance is in the interpretation that the courts have given to similar statutes. Title VI, in the case, was interpreted in a way that programs that have any educational value or |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | a way that programs that have any educational value or any educational meaning are the ones that are covered regardless of whether the Federal funds go specifically to those programs. "In other words, if the Federal funds go to an institution which has educational programs, then the institution is covered throughout its activities. That essentially was the ruling with respect to similar language in title VI, and that is why we used this interpretation in title IX." Then, in a subsequent letter submitted to the Subcommittee, Secretary Weinberger addressed the precise issue posed by Grove City College in this case: "[I]f students attending an institution of higher education are receiving benefits under the various Federal educational assistance programs, then all of the institution's activities that are supported by tuition payments of the students can be said to be receiving Federal financial assistance."[11] *597 Despite the attention focused upon, and the strong defense offered in support of, the programmatic reach of the Department's regulations at these hearings, the House offered no formal resistance to the regulations. Indeed, among the several resolutions of disapproval introduced in the House, only one directly mentioned this aspect of the regulations, and this resolution was not acted upon either by committee or by the full House. H. R. Co Res. 311, 94th Cong., 1st Sess. (1975) (disapproving regulations that "would apply to athletic programs and grants which neither receive nor benefit from Federal financial assistance"); see 121 Cong. Rec. 19209 (1975). Although the failure of Congress to disapprove the Department's regulations is not itself determinative, it does "len[d] weight to the argument" that the regulations were consistent with congressional intent. North Moreover, "the relatively insubstantial interest given the resolutions of disapproval that were introduced seems particularly significant since Congress has proceeded to amend [Title IX] when it has disagreed with [the Department's] interpretation *598 of the statute." Indeed, those amendments, by exempting from the reach of Title IX various facilities or services at educational institutions that themselves do not receive direct federal aid, strongly suggest that Congress understands the statute otherwise to encompass such programs or activities.[12] *599 In conclusion, each of the factors relevant to the interpretation of the program-specificity requirements of Title IX, taken individually or collectively, demonstrates that the Court today limits the reach of Title IX in a way that was wholly unintended by Congress. The contemporaneous legislative history of Title IX, the relevant interpretation of similar language in Title VI, and the administrative and legislative interpretations of Title IX since the statute's original enactment all lead to the same conclusion: that |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | statute's original enactment all lead to the same conclusion: that Title IX coverage for an institution of higher education is appropriate if federal moneys are received by or benefit the entire institutio II A proper application of Title IX to the circumstances of this case demonstrates beyond peradventure that the Court has unjustifiably limited the statute's reach. Grove City College enrolls approximately 140 students who utilize Basic Educational Opportunity Grants (BEOG's) to pay for their education at the College. Although the grant moneys are paid directly to the students, the Court properly concludes that the use of these federal moneys at the College means that the College "receives Federal financial assistance" within the meaning of Title IX. The Court also correctly notes that a principal purpose underlying congressional enactment of the BEOG program is to provide funds that will benefit colleges and universities as a whole. It necessarily follows, in my view, that the entire undergraduate institution operated by Grove City College is subject to the antidiscrimination provisions included in Title IX. A In determining the scope of Title IX coverage, the primary focus should be on the purposes meant to be served by the *600 particular federal funds received by the institutio[13] In this case, Congress has clearly indicated that BEOG moneys are intended to benefit any college or university that enrolls students receiving such grants. As the Court repeatedly recognizes: "The legislative history of the [Education Amendments of 1972] is replete with statements evincing Congress' awareness that the student assistance programs established by the amendments would significantly aid colleges and universities. In fact, one of the stated purposes of the student aid provisions was to `provid[e] assistance to institutions of higher educatio' Pub. L. 92-318, 1001(c)(1), 20 U.S. C. 1070(a)(5)." Ante, at 565-566 (footnote omitted). See also ante, at 564 (Title IX "contains no hint that Congress perceived a substantive difference between direct institutional assistance and aid received by a school through its students"); ante, at 565, 13 ("student aid programs were designed to assist colleges and universities"); ante, at 569, 19 ("The history of [the reenactments of the statutory authorization for BEOG's] makes clear that Congress regards BEOG's and other forms of student aid as a critical source of support for educational institutions"). In many respects, therefore, Congress views financial aid to students, and in particular BEOG's, as the functional equivalent of general aid to institutions. Given this undeniable and clearly stated congressional purpose, it would seem to be self-evident that Congress intended colleges or universities enrolling students who receive BEOG's to be covered, in their entirety, |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | students who receive BEOG's to be covered, in their entirety, by the antidiscrimination provisions of Title IX. That statute's primary purpose, after all, is to ensure *601 that federal moneys are not used to support discriminatory practices. 441 U. S., Under the Court's holding, in contrast, Grove City College is prohibited from discriminating on the basis of sex in its own "financial aid program," but is free to discriminate in other "programs or activities" operated by the institutio Underlying this result is the unstated and unsupportable assumption that moneys received through BEOG's are meant only to be utilized by the College's financial aid program. But it is undisputed that BEOG moneys, paid to the institution as tuition and fees and used in the general operating budget, are utilized to support most, and perhaps all, of the facilities and services that together constitute Grove City College.[14] The absurdity of the Court's decision is further demonstrated by examining its practical effect. According to the Court, the "financial aid program" at Grove City College may not discriminate on the basis of sex because it is covered by Title IX, but the College is not prohibited from discriminating in its admissions, its athletic programs, or even its various academic departments. The Court thus sanctions practices that Congress clearly could not have intended: for example, after today's decision, Grove City College would be free to segregate male and female students in classes run by its mathematics department. This would be so even though *602 the affected students are attending the College with the financial assistance provided by federal funds. If anything about Title IX were ever certain, it is that discriminatory practices like the one just described were meant to be prohibited by the statute. B The Court, moreover, does not offer any defensible justification for its holding. First, the Court states that it has "no doubt" that BEOG's administered through the Regular Disbursement System (RDS) are received, not by the entire College, but by its financial aid program. Thus, the Court reasons, BEOG's administered through the Alternative Disbursement System must also be received only by the financial aid program. The premise of this syllogism, however, simply begs the question presented; until today's decision, there was considerable doubt concerning the reach of Title IX in a college or university administering BEOG's through the RDS. Indeed, the extent to which Title IX covers an educational institution receiving BEOG's is the same regardless of the procedural mechanism chosen by the college to disburse the student aid. With this argument, therefore, the Court is simply restating the question |
Justice Powell | 1,984 | 17 | concurring | Grove City College v. Bell | https://www.courtlistener.com/opinion/111109/grove-city-college-v-bell/ | this argument, therefore, the Court is simply restating the question presented by the case. Second, the Court rejects the notion that the federal funds disbursed under the BEOG program are received by the entire institution because they effectively "free up" the College's own resources for use by all programs or activities that are operated by Grove City College. But coverage of an entire institution that receives BEOG's through its students is not dependent upon such a theory. Instead, Title IX coverage for the whole undergraduate institution at Grove City College is premised on the congressional intent that BEOG moneys would provide aid for the college or university as a whole. Therefore, whatever merit the Court's argument may have for federal moneys that are intended solely to benefit a particular aspect of an educational institution, such as *603 a research grant designed to assist a specific laboratory or professor, see 13 the freeing-up theory is simply irrelevant when the federal financial assistance is meant to benefit the entire institutio Third, the Court contradicts its earlier recognition that BEOG's are no different from general aid to a college or university by claiming that "[s]tudent financial aid programs are sui generis." Ante, at 573. Although this assertion serves to limit severely the effect of the Court's holding, it is wholly unexplained, especially in light of the forceful evidence of congressional intent to the contrary. Indeed, it would be more accurate to say that financial aid for students is the prototypical method for funneling federal aid to institutions of higher educatio Finally, although not explicitly offered as a rationale, the Court's holding might be explained by its willingness to defer to the Government's position as it has been represented to this Court. But until the Government filed its briefs in this case, it had consistently argued that Title IX coverage for the entire undergraduate institution operated by Grove City College was authorized by the statute. See ante, at 562, 10, 570. The latest position adopted by the Government, irrespective of the motivations that might underlie this recent change, is therefore entitled to little, if any, deference. Cf. North -523, 12, 538-539, 29 The interpretation of statutes as important as Title IX should not be subjected so easily to shifts in policy by the executive branch. III In sum, the program-specific language in Title IX was designed to ensure that the reach of the statute is dependent upon the scope of federal financial assistance provided to an institutio When that financial assistance is clearly *604 intended to serve as federal aid for the entire institution, |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | This case concerns the timeliness of a complaint filed in a private securities fraud action. The complaint was timely if filed no more than two years after the plaintiffs “discover[ed] the facts constituting the violation.” 28 U.S. C. Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a rea sonably diligent plaintiff would have discovered, “the facts constituting the violation”—whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,” & v. Hochfelder, pplying this standard, we affirm the Court of ppeals’ determination that the complaint filed here was timely. I The action before us involves a claim by a group of inves tors (the plaintiffs, respondents here) that Merck & Co. and others (the petitioners here, hereinafter Merck) know ingly misrepresented the risks of heart attacks accompany 2 MERCK & CO. v. REYNOLDS Opinion of the Court ing the use of Merck’s pain-killing drug, Vioxx (leading to economic losses when the risks later became apparent). The plaintiffs brought an action for securities fraud under of the Securities Exchange ct of 134. See 48 Stat. 81, as amended, 15 U.S. C. SEC Rule 10b–5, 17 CFR (200); Dura Pharmaceuticals, Inc. v. Broudo, The applicable statute of limitations provides that a “private right of action” that, like the present action, “involves a claim of fraud, deceit, manipulation, or con trivance in contravention of a regulatory requirement concerning the securities laws may be brought not later than the earlier of— “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.” 28 U.S. C. The complaint in this case was filed on November 6, 2003, and no one doubts that it was filed within five years of the alleged violation. Therefore, the critical date for timeliness purposes is November 6, —two years before this complaint was filed. Merck claims that before this date the plaintiffs had (or should have) discovered the “facts constituting the violation.” If so, by the time the plaintiffs filed their complaint, the 2-year statutory period in had run. The plaintiffs reply that they had not, and could not have, discovered by the critical date those “facts,” particularly not the facts related to scienter, and that their complaint was therefore timely. We first set out the relevant pre-November facts, as we have gleaned them from the briefs, the record, and the opinions below. 1. 10’s. In the |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | the record, and the opinions below. 1. 10’s. In the mid-10’s Merck developed Vioxx. In 1 the Food and Drug dministration (FD) approved it for prescription use. Vioxx suppresses pain by inhibiting Cite as: 55 U. S. (0) 3 Opinion of the Court the body’s production of an enzyme called COX–2 (cyclooxy- genase-2). COX–2 is associated with pain and inflamma- tion. Unlike some other anti-inflammatory drugs in its class like aspirin, ibuprofen, and naproxen, Vioxx does not inhibit production of a second enzyme called COX–1 (cyclooxygenase-1). COX–1 plays a part in the functioning of the gastrointestinal tract and also in platelet aggregation (associated with blood clots). pp. 50–51. 2. March Merck announced the results of a study, called the “VIGOR” study. at 21–24. The study compared Vioxx with another painkiller, naproxen. The study showed that persons taking Vioxx suffered fewer gastrointestinal side effects (as Merck had hoped). But the study also revealed that approximately 4 out of every 1,000 participants who took Vioxx suffered heart attacks, compared to only 1 per 1,000 participants who took naproxen. ; see Bombardier et al., Com- parison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid rthritis, 343 New England J. Medicine 1520, 1523, 1526–1527 Merck’s press release acknowledged VIGOR’s adverse cardiovascular data. But Merck said that these data were “consistent with naproxen’s ability to block platelet aggre- gation.” pp. 21. Merck noted that, since “Vioxx, like all COX–2 selective medicines, does not block platelet aggre- gation[, it] would not be expected to have similar effects.” nd Merck added that “safety data from all other completed and ongoing clinical trials showed no indica- tion of a difference in the incidence of thromboembolic events between Vioxx” and either a placebo or comparable drugs. This theory—that VIGOR’s troubling cardiovascular findings might be due to the absence of a benefit conferred by naproxen rather than due to a harm caused by Vioxx— later became known as the “naproxen hypothesis.” In advancing that hypothesis, Merck acknowledged that the 4 MERCK & CO. v. REYNOLDS Opinion of the Court naproxen benefit “had not been observed previously.” at 21. Journalists and stock market analysts reported all of the above—the positive gastrointestinal results, the troubling cardiovascular finding, the naproxen hypothesis, and the fact that the naproxen hypothesis was unproved. See at 355–31, 508–557. 3. February to ugust Public debate about the naproxen hypothesis continued. In February the FD’s rthritis dvisory Committee convened to consider Merck’s request that the Vioxx label be changed to reflect VIGOR’s positive gastrointestinal findings. The VIGOR cardiovascular findings were also discussed. at 32– 35, |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | The VIGOR cardiovascular findings were also discussed. at 32– 35, 558–577. In May a group of plaintiffs filed a products-liability lawsuit against Merck, claiming that “Merck’s own research” had demonstrated that “users of Vioxx were four times as likely to suffer heart attacks as compared to other less expensive, medications.” at 86. In ugust the Journal of the merican Medical ssociation wrote that the available data raised a “cau tionary flag” and strongly urged that “a trial specifically assessing cardiovascular risk” be done. at 331–332; Mukherjee, Nissen, & Topol, Risk of Cardiovascular Events ssociated with Selective Cox-2 Inhibitors, 286 JM 54 t about the same time, Bloomberg News quoted a Merck scientist who claimed that Merck had “additional data” that were “very, very reassuring,” and Merck issued a press release stating that it stood “behind the overall and cardiovascular safety profile of Vioxx.” pp. 434, 120 (emphasis deleted; internal quota tion marks omitted). 4. September and October The FD sent Merck a warning letter released to the public on September 21, It said that, in respect to cardiovascular risks, Merck’s Vioxx marketing was “false, lacking in fair bal ance, or otherwise misleading.” t the same time, the FD acknowledged that the naproxen hypothesis Cite as: 55 U. S. (0) 5 Opinion of the Court was a “possible explanation” of the VIGOR results. at 340. But it found that Merck’s “promotional campaign selectively present[ed]” that hypothesis without adequately acknowledging “another reasonable explanation,” namely, “that Vioxx may have pro-thrombotic [i.e., adverse cardio vascular] properties.” The FD ordered Merck to send healthcare providers a corrective letter. fter the FD letter was released, more products liability lawsuits were filed. See at 885–56. Merck’s share price fell by 6.6% over several days. See By October 1, the price rebounded. See On October the New York Times said that Merck had reexam ined its own data and “found no evidence that Vioxx in creased the risk of heart attacks.” pp. 504. It quoted the president of Merck Research Laboratories as positing “ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the heart attack rate, or Vioxx raises it.’ ” Stock ana lysts, while reporting the warning letter, also noted that the FD had not denied that the naproxen hypothesis remained an unproven but possible explanation. See at 614, 626, 628. B We next set forth three important events that occurred after the critical date. 1. October 2003. The Wall Street Journal published the results of a Merck-funded Vioxx study conducted at Bos ton’s Brigham and Women’s Hospital. fter examining the medical records of more than 50,000 Medicare |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | fter examining the medical records of more than 50,000 Medicare pa tients, researchers found that those given Vioxx for 30-to 0 days were 37% more likely to have suffered a heart attack than those given either a different painkiller or no painkiller at all. at 164–165. (That is to say, if pa tients given a different painkiller or given no painkiller at all suffered 10 heart attacks, then the same number of patients given Vioxx would suffer 13 or 14 heart attacks.) 6 MERCK & CO. v. REYNOLDS Opinion of the Court Merck defended Vioxx and pointed to the study’s limita tions. at 165–167. 2. September 30, 2004. Merck withdrew Vioxx from the market. It said that a new study had found “an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy.” (internal quo tation marks omitted). Merck representative publicly described the results as “totally unexpected.” Merck’s shares fell by 27% the same day. 3. November 1, 2004. The Wall Street Journal published an article stating that “internal Merck e-mails and mar keting materials as well as interviews with outside scien tists show that the company fought forcefully for years to keep safety concerns from destroying the drug’s commer cial prospects.” at 18–10. The article said that an early e-mail from Merck’s head of research had said that the VIGOR “results showed that the cardiovascular events ‘are clearly there,’ ” that it was “ ‘a shame but a low incidence,’ ” and that it “ ‘is mechanism based as we wor ried it was.’ ” It also said that Merck had given its salespeople instructions to “ ‘DODGE’ ” questions about Vioxx’s cardiovascular effects. C The plaintiffs filed their complaint on November 6, 2003. s subsequently amended, the complaint alleged that Merck had defrauded investors by promoting the naproxen hypothesis, knowing the hypothesis was false. It said, for example, that Merck “knew, at least as early as 16, of the serious safety issues with Vioxx,” and that a “18 internal Merck clinical trial revealed that serious cardiovascular events occurred six times more frequently in patients given Vioxx than in patients given a different arthritis drug or placebo.” 58–5 (emphasis and capitalization deleted). Merck, believing that the plaintiffs knew or should have Cite as: 55 U. S. (0) 7 Opinion of the Court known the “facts constituting the violation” at least two years earlier, moved to dismiss the complaint, saying it was filed too late. The District Court granted the motion. The court held that the VIGOR study, the FD warning letter, and Merck’s response should have |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | study, the FD warning letter, and Merck’s response should have alerted the plaintiffs to a “possibility that Merck had knowingly misrepresented material facts” no later than October thus placing the plaintiffs on “inquiry notice” to look further. In re Merck & Co. Securities, Derivative & “ERIS” Litigation, Finding that the plaintiffs had failed to “show that they exercised reasonable due diligence but nevertheless were unable to discover their injuries,” the court took October as the date that the limitations period began to run and therefore found the complaint untimely. The Court of ppeals for the Third Circuit reversed. majority held that the pre-November events, while constituting “storm warnings,” did not suggest much by way of scienter, and consequently did not put the plaintiffs on “inquiry notice,” requiring them to investigate further. In re Merck & Co. Securities, Derivative & “ERIS” Litiga tion, dissenting judge consid ered the pre-November events sufficient to start the 2-year clock running. Merck sought review in this Court, pointing to dis agreements among the Courts of ppeals. Compare Theo (limita tions period begins to run when information puts plaintiffs on “inquiry notice” of the need for investigation), with (same; but if plaintiff does investigate, period runs “from the date such inquiry should have revealed the fraud” (internal quotation marks omitted)), and New England Health Employees Pension Fund v. & LLP, 336 F.3d 45, 501 (C6 2003) (limitations period always begins to 8 MERCK & CO. v. REYNOLDS Opinion of the Court run only when a reasonably diligent plaintiff, after being put on “inquiry notice,” should have discovered facts con stituting violation (internal quotation marks omitted)). We granted Merck’s petition. II Before turning to Merck’s arguments, we consider a more basic matter. The parties and the Solicitor General agree that ’s word “discovery” refers not only to a plaintiff’s actual discovery of certain facts, but also to the facts that a reasonably diligent plaintiff would have discovered. We agree. But because the statute’s language does not make this interpretation obvious, and because we cannot answer the question presented without considering whether the parties are right about this matter, we set forth the reasons for our agreement in some detail. We recognize that one might read the statutory words “after the discovery of the facts constituting the violation” as referring to the time a plaintiff actually discovered the relevant facts. But in the statute of limitations context, the word “discovery” is often used as a term of art in con nection with the “discovery rule,” a doctrine that delays accrual of a cause of action until the plaintiff |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | delays accrual of a cause of action until the plaintiff has “discov ered” it. The rule arose in fraud cases as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a “complete and present cause of ac tion,” Bay rea Laundry and Dry Cleaning Pension Trust ; inter nal quotation marks omitted). This Court long ago recog nized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, “the law which was designed to prevent fraud” could become “the means by which it is Cite as: 55 U. S. (0) Opinion of the Court made successful and secure.” Bailey v. Glover, 21 Wall. 342, 34 ccordingly, “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” (146) (internal quotation marks omitted; emphasis added). nd for more than a century, courts have under stood that “[f]raud is deemed to be discovered when, in the exercise of reasonable diligence, it could have been discovered.” 2 H. Wood, Limitation of ctions p. 1402 (4th ed. 116); see at 1401–1403, and nn. 74– 84 (collecting cases and statutes); see, e.g., Holmberg, at ; (The rule “regard[s] the cause of action as having accrued at the time the fraud was or should have been discovered”). More recently, both state and federal courts have ap plied forms of the “discovery rule” to claims other than fraud. See 2 C. Corman, Limitation of ctions 11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (11 and Supp.) (hereinafter Corman) ; see, e.g., United Legisla tures have codified the discovery rule in various contexts. 2 Corman at 170–171, and nn. 1– (collecting stat utes); see, e.g., 28 U.S. C. (actions to quiet title against the United States). In doing so, legislators have written the word “discovery” directly into the statute. nd when they have done so, state and federal courts have typically interpreted the word to refer not only to actual discovery, but also to the hypothetical discovery of facts a reasonably diligent plaintiff would know. See, e.g., Pea 217–220, (106); ; 640–642, 10 MERCK & CO. v. REYNOLDS Opinion of the Court 821 (124); (C5 15); 657 P.2d 604, 606 ; ; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers now describe “the discovery rule” as allowing a claim “to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action.” 2 Corman at 134 ; see also ib n. 1 ; 37 m. Jur. 2d, Fraud and Deceit p. 354 ( and Supp. 200) (noting that the various formulations of “dis covery” all provide that “in addition to actual knowledge of the fraud, once a reasonably diligent party is in a position that they should have sufficient knowledge or information to have actually discovered the fraud, they are charged with discovery”); at 354–355, and nn. 2–11 (collecting cases). Like the parties, we believe that Congress intended courts to interpret the word “discovery” in similarly. Before Congress enacted that statute, this Court, having found in the federal securities laws the existence of an implied private action, determined its governing limitations period by looking to other limita tions periods in the federal securities laws. Pleva, Lipkind, Prupis & (11). Noting the existence of various formulations “differ[ing] slightly in terminology,” the Court chose the language in 15 U.S. C. the statutory provision that governs securities price manipulation claims. 501 U.S., at 364, n. nd in doing so, the Court said that private actions “must be commenced within one year after the discovery of the facts constituting the viola tion and within three years after such violation.” at 364 (The Court listed among the vari Cite as: 55 U. S. (0) 11 Opinion of the Court ous formulations the one in 15 U.S. C. on which the concurrence relies. See post, at 2–4 (SCLI, J., concurring in part and concurring in judgment); and n. 7 Some of those courts noted that other limitations provi sions in the federal securities laws explicitly provide that the period begins to run “ ‘after the discovery of the untrue statement or after such discovery should have been made by [the] exercise of reasonable diligence,’ ” whereas the formulation adopted by the Court in from 15 U.S. C. does not. (quoting emphasis added in ); see at 364, n. But, courts reasoned, because the term “discov ery” in respect to statutes of limitations for fraud has long been understood to include discoveries a reasonably dili gent plaintiff would make, the omission of an explicit provision to that effect did not matter. at 721; accord, New England Health – 500. In when Congress enacted the present limitations statute, it repeated ’s critical language. The statute says that an action |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | repeated ’s critical language. The statute says that an action based on fraud “may be brought not later than the earlier of 2 years after the discovery of the facts constituting the violation” (or “5 years after such violation”). of the Sarbanes-Oxley ct, codified at 28 U.S. C. (This statutory provision does not make the linguistic distinc 12 MERCK & CO. v. REYNOLDS Opinion of the Court tion that the concurrence finds in a different statute, and upon which its argument rests. Cf. 2 U.S. C. (statute in which Congress provided that an action be brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” ).) Not surprisingly, the Courts of ppeals unanimously have continued to inter pret the word “discovery” in this statute as including not only facts a particular plaintiff knows, but also the facts any reasonably diligent plaintiff would know. See, e.g., Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d 406, 411 ; Sudo Properties, We normally assume that, when Congress enacts stat utes, it is aware of relevant judicial precedent. See, e.g., 116–117, and n. 13 ; Given the history and precedent surrounding the use of the word “discovery” in the limitations context generally as well as in this provision in particular, the reasons for making this as sumption are particularly strong here. We consequently hold that “discovery” as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. nd we evaluate Merck’s claims accordingly. III We turn now to Merck’s arguments in favor of holding that petitioners’ claims accrued before November 6, First, Merck argues that the statute does not require “discovery” of scienter-related “facts.” See Brief for Peti tioners 1–28. We cannot agree, however, that facts about scienter are unnecessary. The statute says that the limitations period does not begin to run until “discovery of the facts constituting the Cite as: 55 U. S. (0) 13 Opinion of the Court violation.” 28 U.S. C. Scienter is assuredly a “fact.” In a action, scienter refers to “a mental state embracing intent to deceive, manipulate, or defraud.” & n. 12. nd the “ ‘state of a man’s mind is as much a fact as the state of his digestion.’ ” Postal Service Bd. of Gover (quoting Edging ton v. Fitzmaurice, [1885] 2 Ch. Div. 45, 483). nd this “fact” of scienter “constitut[es]” an important and necessary element of a “violation.” plaintiff cannot recover without proving that a defendant made a material misstatement |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | recover without proving that a defendant made a material misstatement with an intent to deceive—not merely innocently or negligently. See Inc. v. Makor Issues & Rights, Ltd., ; & Indeed, Congress has enacted special heightened pleading requirements for the scienter element of fraud cases. See 15 U.S. C. (requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” ). s a result, unless a plaintiff can set forth facts in the complaint showing that it is more likely than not that the defendant acted with the relevant knowledge or intent, the claim will fail. See It would there fore frustrate the very purpose of the discovery rule in this provision—which, after all, specifically applies only in cases “involv[ing] a claim of fraud, deceit, manipulation, or contrivance,” —if the limitations period began to run regardless of whether a plaintiff had discovered any facts suggesting scienter. So long as a defendant con cealed for two years that he made a misstatement with an intent to deceive, the limitations period would expire before the plaintiff had actually “discover[ed]” the fraud. We consequently hold that facts showing scienter are among those that “constitut[e] the violation.” In so hold ing, we say nothing about other facts necessary to support 14 MERCK & CO. v. REYNOLDS Opinion of the Court a private action. Cf. Brief for United States as micus Curiae 12, n. 1 (suggesting that facts concerning a plaintiff’s reliance, loss, and loss causation are not among those that constitute “the violation” and therefore need not be “discover[ed]” for a claim to accrue). Second, Merck argues that, even if “discovery” requires facts related to scienter, facts that tend to show a materi ally false or misleading statement (or material omission) are ordinarily sufficient to show scienter as well. See Brief for Petitioners 22, 28–2. But we do not see how that is so. We recognize that certain statements are such that, to show them false is normally to show scienter as well. It is unlikely, for example, that someone would falsely say “I am not married” without being aware of the fact that his statement is false. Where is at issue, however, the relation of factual falsity and state of mind is more context specific. n incorrect prediction about a firm’s future earnings, by itself, does not automatically tell us whether the speaker deliberately lied or just made an innocent (and therefore nonactionable) error. Hence, the statute may require “discovery” of scienter-related facts beyond the facts that show a statement (or omission) |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | facts beyond the facts that show a statement (or omission) to be materially false or misleading. Merck fears that this requirement will give life to stale claims or subject defen dants to liability for acts taken long ago. But Congress’ inclusion in the statute of an unqualified bar on actions instituted “5 years after such violation,” (2), giv ing defendants total repose after five years, should dimin ish that fear. Cf. (holding compa rable bar not subject to equitable tolling). Third, Merck says that the limitations period began to run prior to November because by that point the plaintiffs were on “inquiry notice.” Merck uses the term “inquiry notice” to refer to the point “at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry.” Cite as: 55 U. S. (0) 15 Opinion of the Court Brief for Petitioners 20. nd some, but not all, Courts of ppeals have used the term in roughly similar ways. See, e.g., (“[I]nquiry notice [is] “ ‘the term used for knowledge of facts that would lead a reasonable person to begin investigating the possibility that his legal rights had been infringed’ ”). Cf. 12 F.3d, at (“duty of inquiry” arises once “circumstances would suggest to an investor of ordinary intelligence the probability that she had been defrauded”); Fujisawa Pharmaceutical Co. v. Kapoor, (“The facts constituting [inquiry] notice must be sufficien[t] to incite the victim to investigate” and “to enable him to tie up any loose ends and complete the investigation in time to file a timely suit”); Great Rivers Cooperative of South eastern 86 (“Inquiry notice exists when the victim is aware of facts that would lead a reasonable person to investigate and consequently acquire actual knowledge of the defendant’s misrepresentations” ). If the term “inquiry notice” refers to the point where the facts would lead a reasonably diligent plaintiff to investi gate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or other “facts constituting the violation.” But the statute says that the plaintiff’s claim accrues only after the “discovery” of those latter facts. Nothing in the text sug gests that the limitations period can sometimes begin before “discovery” can take place. Merck points out that, as we have discussed, see at 8–, the court-created “discov ery rule” exception to ordinary statutes of limitations is not generally available to plaintiffs who fail to pursue their claims with reasonable diligence. But we are dealing here with a statute, not a court-created exception to a statute. |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | with a statute, not a court-created exception to a statute. Because the statute contains no indication that the limita tions period should occur at some earlier moment before 16 MERCK & CO. v. REYNOLDS Opinion of the Court “discovery,” when a plaintiff would have begun investigat ing, we cannot accept Merck’s argument. s a fallback, Merck argues that even if the limitations period does generally begin at “discovery,” it should none theless run from the point of “inquiry notice” in one par ticular situation, namely, where the actual plaintiff fails to undertake an investigation once placed on “inquiry no tice.” In such circumstances, Merck contends, the actual plaintiff is not diligent, and the law should not “effectively excuse a plaintiff’s failure to conduct a further investiga tion” by placing that nondiligent plaintiff and a reasonably diligent plaintiff “in the same position.” Brief for Petition ers 48. We cannot accept this argument for essentially the same reason we reject “inquiry notice” as the standard gener ally: We cannot reconcile it with the statute, which simply provides that “discovery” is the event that triggers the 2 year limitations period—for all plaintiffs. Cf. United (“Laches within the term of the statute of limitations is no defense at law”). Furthermore, the statute does not place all plain tiffs “in the same position” no matter whether they inves tigate when investigation is warranted. The limitations period puts plaintiffs who fail to investigate once on “in quiry notice” at a disadvantage because it lapses two years after a reasonably diligent plaintiff would have discovered the necessary facts. plaintiff who fails entirely to inves tigate or delays investigating may well not have discov ered those facts by that time or, at least, may not have found sufficient facts by that time to be able to file a complaint that satisfies the applicable heightened plead ing standards. Cf. (“[] reasonably diligent investigation may consume as little as a few days or as much as a few years to get to the bottom of the matter”). Merck further contends that its proposed “inquiry no Cite as: 55 U. S. (0) 17 Opinion of the Court tice” standard is superior, because determining when a hypothetical reasonably diligent plaintiff would have “discover[ed]” the necessary facts is too complicated for judges to undertake. But courts applying the traditional discovery rule have long had to ask what a reasonably diligent plaintiff would have known and done in myriad circumstances. nd courts in at least five Circuits already ask this kind of question in securities fraud cases. See, e.g., 7 ; New England Health |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | securities fraud cases. See, e.g., 7 ; New England Health ; at 1, –10; 154 F.3d 111, 1 (C10 18); Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367–368 Merck has not shown this precedent to be unworkable. We consequently find that the “discovery” of facts that put a plaintiff on “inquiry notice” does not automatically begin the running of the limitations period. We conclude that the limitations period in begins to run once the plaintiff did discover or a reasona bly diligent plaintiff would have “discover[ed] the facts constituting the violation”—whichever comes first. In determining the time at which “discovery” of those “facts” occurred, terms such as “inquiry notice” and “storm warn ings” may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating. But the limitations period does not begin to run until the plaintiff thereafter discov ers or a reasonably diligent plaintiff would have discov ered “the facts constituting the violation,” including sci enter—irrespective of whether the actual plaintiff undertook a reasonably diligent investigation. IV Finally, Merck argues that, even if all its other legal arguments fail, the record still shows that, before Novem 18 MERCK & CO. v. REYNOLDS Opinion of the Court ber 6, the plaintiffs had discovered or should have discovered “the facts constituting the violation.” In re spect to scienter Merck primarily relies upon (1) the FD’s September warning letter, which said that Merck had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious cardiovascular findings’ ” and (2) pleadings filed in prod ucts-liability actions in September and October alleging that Merck had “ ‘omitted, suppressed, or con cealed material facts concerning the dangers and risks associated with Vioxx’ ” and “purposefully downplayed and/or understated the serious nature of the risks associ ated with Vioxx.” Brief for Petitioners 36–37 (quoting pp. 340, 83). The FD’s warning letter, however, shows little or nothing about the here-relevant scienter, i.e., whether Merck advanced the naproxen hypothesis with fraudulent intent. See Part I–(4), The FD itself described the pro-Vioxx naproxen hypothesis as a “possible explana tion” for the VIGOR results, faulting Merck only for failing sufficiently to publicize the alternative less favorable to Merck, that Vioxx might be harmful. pp. 340. The products-liability complaints’ statements about Merck’s knowledge show little more. See Part I–(3), Merck does not claim that these complaints con tained any specific information suggesting the fraud al leged here, i.e., that Merck knew the naproxen hypothesis was false even as it promoted it. nd, without providing any reason to believe |
Justice Breyer | 2,010 | 2 | majority | Merck & Co. v. Reynolds | https://www.courtlistener.com/opinion/78784/merck-co-v-reynolds/ | it promoted it. nd, without providing any reason to believe that the plaintiffs had special access to information about Merck’s state of mind, the complaints alleged only in general terms that Merck had concealed information about Vioxx and “purposefully downplayed and/or understated” the risks associated with Vioxx—the same charge made in the FD warning letter. pp. 83. In our view, neither these two circumstances nor any of the other pre-November circumstances that we have set forth in Part I–, whether viewed separately or Cite as: 55 U. S. (0) 1 Opinion of the Court together, reveal “facts” indicating scienter. Regardless of which, if any, of the events following November 6, constituted “discovery,” we need only conclude that prior to November 6, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, “the facts constituting the viola tion.” In light of our interpretation of the statute, our holdings in respect to scienter, and our application of those holdings to the circumstances of this case, we must, and we do, reach that conclusion. Thus, the plaintiffs’ suit is timely. We need not—and do not—pass upon the Court of ppeals’ suggestion that the November 2003 Brigham and Women’s study might have triggered the statute of limitations. The judgment of the Court of ppeals is ffirmed. Cite as: 55 U. S. (0) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion the Court’s explanation of why the com plaint was timely filed is convincing and correct. nte, at 12–1. In this case there is no difference between the time when the plaintiffs actually discovered the factual basis for their claim and the time when reasonably diligent plaintiffs should have discovered those facts. For that reason, much of the discussion in Part II of the Court’s opinion, see ante, at 8–12, is not necessary to support the Court’s judgment. Until a case arises in which the differ ence between an actual discovery rule and a constructive discovery rule would affect the outcome, I would reserve decision on the merits of JUSTICE SCLI’s argument, post, at 1–7 (opinion concurring in part and concurring in judgment). With this reservation, I join the Court’s excel lent opinion. Cite as: 55 U. S. (0) 1 Opinion of SCLI, J. SUPREME COURT OF THE UNITED |
Justice Burger | 1,970 | 12 | second_dissenting | Hadley v. Junior College Dist. of Metropolitan Kansas City | https://www.courtlistener.com/opinion/108076/hadley-v-junior-college-dist-of-metropolitan-kansas-city/ | I concur fully in the opinion of MR. JUSTICE HARLAN. I add this comment to emphasize the subjective quality of a doctrine of constitutional law that has as its primary standard "a general rule, [that] whenever a state or local government decides to select persons by popular election" the Constitution commands that each qualified voter must be given a vote which is equally weighted with the votes cast by all other electors. The failure to provide guidelines for determining when the Court's "general rule" is to be applied is exacerbated when the Court implies that the stringent standards of "mathematical exactitude" that are controlling in apportionment of federal congressional districts need not be applied to smaller specialized districts such as the junior college district in this case. This gives added relevance to MR. JUSTICE HARLAN's observation that "[t]he need for more flexibility becomes greater as we proceed down the spectrum from the state legislature to the single-purpose local entity." Ante, at 67. Yet the Court has given almost no indication of which non-population *71 interests may or may not legitimately be considered by a legislature in devising a constitutional apportionment scheme for a local, specialized unit of government. Ultimately, only this Court can finally apply these "general rules" but in the interim all other judges must speculate as best they can when and how to apply them. With all deference I suggest the Court's opinion today fails to give any meaningful guidelines. |
Justice Scalia | 2,003 | 9 | majority | PacifiCare Health Systems, Inc. v. Book | https://www.courtlistener.com/opinion/127909/pacificare-health-systems-inc-v-book/ | In this case, we are asked to decide whether respondents can be compelled to arbitrate claims arising under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. 1961 et seq., notwithstanding the fact that the parties' arbitration agreements may be construed to limit the arbitrator's authority to award damages under that statute. I Respondents are members of a group of physicians who filed suit against managed-health-care organizations including petitioners PacifiCare Health Systems, Inc., and PacifiCare Operations, Inc. (collectively, PacifiCare), and United-Healthcare, Inc., and United Health Group Inc. (collectively, United). These physicians alleged that the defendants unlawfully failed to reimburse them for health-care services that they had provided to patients covered by defendants' health plans. They brought causes of action under RICO, the Employee Retirement Income Security Act of 1974 (ERISA), and federal and state prompt-pay statutes, as well as claims for breach of contract, unjust enrichment, and in *403 quantum meruit. In re: Managed Care Litigation, Of particular concern here, PacifiCare and United moved the District Court to compel arbitration, arguing that provisions in their contracts with respondents required arbitration of these disputes, including those arising under RICO. Respondents opposed the motion on the ground that, because the arbitration provisions prohibit an award of punitive damages, see App. 107, 147, 168, 212, respondents could not obtain "meaningful relief" in arbitration for their claims under the RICO statute, which authorizes treble damages, 18 U.S. C. 1964(c). See The District Court denied petitioners' request to compel arbitration of the RICO The court concluded that given the remedial limitations in the relevant contracts, it was, indeed, "faced with a potential Paladino situation, where the plaintiff may not be able to obtain meaningful relief for allegations of statutory violations in an arbitration forum." Accordingly, it found the arbitration agreements unenforceable with respect to respondents' RICO The Eleventh Circuit affirmed "for the reasons set forth in [the District Court's] comprehensive opinion," In re: Humana Inc. Managed Care Litigation, and we granted certiorari, II Petitioners argue that whether the remedial limitations render their arbitration agreements unenforceable is not a question of "arbitrability," and hence should have been decided by an arbitrator, rather than a court, in the first instance. *404 They also claim that even if this question is one of arbitrability, and is therefore properly within the purview of the courts at this time, the remedial limitations at issue do not require invalidation of their arbitration agreements. Either way, petitioners contend, the lower courts should have compelled arbitration. We conclude that it would be premature for us to address these questions at this |
Justice Scalia | 2,003 | 9 | majority | PacifiCare Health Systems, Inc. v. Book | https://www.courtlistener.com/opinion/127909/pacificare-health-systems-inc-v-book/ | be premature for us to address these questions at this time. Our decision in Vimar Seguros y Reaseguros, S. supplies the analytic framework for assessing the ripeness of this dispute. In Vimar, we dealt with a bill of lading concerning a shipment of goods from Morocco to Massachusetts. Upon receipt of the goods, the purchaser discovered that they had been damaged, and, along with its insurer (Vimar), filed suit against the shipper. The shipper sought to compel arbitration, relying on choice-of-law and arbitration clauses in the bill of lading under which disputes arising out of the parties' agreement were to be governed by Japanese law and resolved through arbitration before the Tokyo Maritime Arbitration Commission. Vimar countered by arguing that the arbitration clause violated the Carriage of Goods by Sea Act (COGSA), 46 U.S. C. App. 1300 et seq., and hence was -532. In particular, Vimar claimed that "there is no guarantee foreign arbitrators will apply COGSA"; that the foreign arbitrator was likely to apply rules of Japanese law under which respondents' liability might be less than what it would be under COGSA; and that this would violate "[t]he central guarantee of [COGSA] 3(8) that the terms of a bill of lading may not relieve the carrier of obligations or diminish the legal duties specified by the Act." Notwithstanding Vimar's insistence that the arbitration agreement violated federal policy as embodied in COGSA, we declined to reach the issue and held that the arbitration clause was, at least initially, enforceable. "At this interlocutory stage," we explained, "it is not established what law the arbitrators will apply to petitioner's claims or that petitioner *405 will receive diminished protection as a result. The arbitrators may conclude that COGSA applies of its own force or that Japanese law does not apply so that, under another clause of the bill of lading, COGSA controls." We further emphasized that "mere speculation that the foreign arbitrators might apply Japanese law which, depending on the proper construction of COGSA, might reduce respondents' legal obligations, does not in and of itself lessen liability under COGSA 3(8)," nor did it provide an adequate basis upon which to declare the relevant arbitration agreement We found that "[w]hatever the merits of petitioner's comparative reading of COGSA and its Japanese counterpart, its claim is premature." The case at bar arrives in a similar posture. Two of the four arbitration agreements at issue provide that "punitive damages shall not be awarded [in arbitration]," App. 107, 147; one provides that "[t]he arbitrators shall have no authority to award any punitive or exemplary damages," ; and |
Justice Scalia | 2,003 | 9 | majority | PacifiCare Health Systems, Inc. v. Book | https://www.courtlistener.com/opinion/127909/pacificare-health-systems-inc-v-book/ | authority to award any punitive or exemplary damages," ; and one provides that "[t]he arbitrators shall have no authority to award extra contractual damages of any kind, including punitive or exemplary damages," Respondents insist, and the District Court -1001, 1005, that these provisions preclude an arbitrator from awarding treble damages under RICO. We think that neither our precedents nor the ambiguous terms of the contracts make this clear. Our cases have placed different statutory treble-damages provisions on different points along the spectrum between purely compensatory and strictly punitive awards. Thus, in Vermont Agency of Natural we characterized the treble-damages provision of the False Claims Act, 31 U.S. C. 3729-3733, as "essentially punitive in nature." In Brunswick on the other hand, we explained that the treble-damages *406 provision of 4 of the Clayton Act, 15 U.S. C. 15, "is in essence a remedial provision." Likewise in American Soc. of Mechanical Engineers, we noted that "the antitrust private action [which allows for treble damages] was created primarily as a remedy for the victims of antitrust violations." (Emphasis added.) And earlier this Term, in Cook County v. United States ex rel. Chandler, ante, at 130, we stated that "it is important to realize that treble damages have a compensatory side, serving remedial purposes in addition to punitive objectives." Indeed, we have repeatedly acknowledged that the treble-damages provision contained in RICO itself is remedial in nature. In Agency Holding we stated that "[b]oth RICO and the Clayton Act are designed to remedy economic injury by providing for the recovery of treble damages, costs, and attorney's fees." (Emphasis added.) And in Shearson/American Express we took note of the "remedial function" of RICO's treble-damages provision. In light of our case law's treatment of statutory treble damages, and given the uncertainty surrounding the parties' intent with respect to the contractual term "punitive,"[1] the application of the disputed language to respondents' RICO claims is, to say the least, in doubt. And Vimar instructs that we should not, on the basis of "mere speculation" that an arbitrator might interpret these ambiguous agreements *407 in a manner that casts their enforceability into doubt, take upon ourselves the authority to decide the antecedent question of how the ambiguity is to be resolved.[2] 515 U. S., In short, since we do not know how the arbitrator will construe the remedial limitations, the questions whether they render the parties' agreements unenforceable and whether it is for courts or arbitrators to decide enforceability in the first instance are unusually abstract. As in Vimar, the proper course is to compel arbitration. The judgment of the |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | The questio preseted by these cosolidated cases is whether the Couty of Yakima may impose a ad valorem tax o so-called "fee-pateted" lad located withi the Yakima Idia Reservatio, ad a excise tax o sales of such lad. I A I the late 19th cetury, the prevailig atioal policy of segregatig lads for the exclusive use ad cotrol of the *254 Idia tribes gave way to a policy of allottig those lads to tribe members idividually. The objectives of allotmet were simple ad clear cut: to extiguish tribal sovereigty, erase reservatio boudaries, ad force the assimilatio of ito the society at large. See, e. g., I re Cogress was selective at first, allottig lads uder differig approaches o a tribe-by-tribe basis. See F. Hadbook of Federal Idia Law 129 130 (1982); Gates, Idia Allotmets Precedig the Dawes Act, i The Frotier Challege 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted lad could be sold soo after it was received, see, e. g., Treaty with Wyadot Natio, Apr. 1, 1850, 992, may of the early allottees quickly lost their lad through trasactios that were uwise or eve procured by fraud. See Eve if sales were for fair value, Idia allottees divested of their lad were deprived of a opportuity to acquire agricultural ad other self-sustaiig ecoomic skills, thus compromisig Cogress' purpose of assimilatio. Cogress sought to solve these problems i the Idia Geeral Allotmet Act of 1887, also kow as the Dawes Act, as ameded, 25 U.S. C. 331 et seq. which empowered the Presidet to allot most tribal lads atiowide without the coset of the Idia atios ivolved. The Dawes Act restricted immediate alieatio or ecumbrace by providig that each allotted parcel would be held by the Uited States i trust for a period of 25 years or loger; oly the would a fee patet issue to the Idia allotted. ; see Uited Sectio 6 of the Act furthered Cogress' goal of assimilatio by providig that "each ad every member of the respective bads or tribes of to whom allotmets have bee made shall have the beefit of ad be subject to the laws, both civil ad crimial, of the State or Territory i which they may reside." *255 I I re we held that this latter provisio subjected Idia allottees to pleary state jurisdictio immediately upo issuace of a trust patet (ad prior to the expiratio of the 25-year trust period). Cogress promptly altered that dispositio i the Burke Act of 1906, decreeig that state civil ad crimial jurisdictio would lie |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | 1906, decreeig that state civil ad crimial jurisdictio would lie "at the expiratio of the trust period whe the lads have bee coveyed to the by patet i fee." A proviso, however, gave the Presidet authority, whe he foud a allotted "competet ad capable of maagig his or her affairs," to "issu[e] a patet i fee simple" prior to the expiratio of the relevat trust period. Upo such a premature patetig, the proviso specified (sigificatly for preset purposes) ot that the patetee would be subject to state civil ad crimial jurisdictio but that "all restrictios as to sale, icumbrace, or taxatio of said lad shall be removed." The policy of allotmet came to a abrupt ed i 1934 with passage of the Idia Reorgaizatio Act. See 25 U.S. C. 461 et seq. Returig to the priciples of tribal self-determiatio ad self-goverace which had characterized the pre-Dawes Act era, Cogress halted further allotmets ad exteded idefiitely the existig periods of trust applicable to already allotted (but ot yet fee-pateted) Idia lads. See 461, 462. I additio, the Act provided for restorig uallotted surplus Idia lads to tribal owership, see 463, ad for acquirig, o behalf of the tribes, lads "withi or without existig reservatios." 465. Except by authorizig reacquisitio of allotted lads i trust, however, Cogress made o attempt to udo the dramatic effects of the allotmet years o the owership of former Idia lads. It either imposed restraits o the ability of Idia allottees to alieate or ecumber their fee-pateted lads or impaired the rights of those o- who had acquired title to over two-thirds of the Idia lads allotted *256 uder the Dawes Act. See W. Washbur, Red Ma's Lad/ White Ma's Law 145 (1971). B The Yakima Idia Reservatio, which was established by treaty i 1855, see Treaty with Yakima Natio, covers approximately 1.3 millio acres i southeaster Washigto State. Eighty percet of the reservatio's lad is held by the Uited States i trust for the beefit of the or its idividual members; 20 percet is owed i fee by ad o- as a result of patets distributed durig the allotmet era. See Some of this fee lad is owed by the Yakima Idia Natio itself. The reservatio is located almost etirely withi the cofies of petitioer/cross-respodet Yakima Couty. Pursuat to Washigto law, Yakima Couty imposes a ad valorem levy o taxable real property withi its jurisdictio ad a excise tax o sales of such lad. Wash. Rev. Code 84.52.030, 82.45.070 Accordig to the couty, these taxes have bee levied o the Yakima Reservatio's fee lads ad collected |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | bee levied o the Yakima Reservatio's fee lads ad collected without icidet for some time. I 1987, however, as Yakima Couty proceeded to foreclose o properties throughout the couty for which ad valorem ad excise taxes were past due, icludig a umber of reservatio parcels i which the or its members had a iterest, respodet/ cross-petitioer Yakima Natio commeced this actio for declaratory ad ijuctive relief, cotedig that federal law prohibited these taxes o fee-pateted lads held by the or its members. O stipulated facts, the District Court awarded summary judgmet to the ad etered a ijuctio prohibitig the impositio or collectio of the taxes o such lads. O appeal, the Court of Appeals for the Nith Circuit agreed that the excise tax was impermissible, but held that the ad *257 valorem tax would be impermissible oly if it would have a "`demostrably serious' " impact o the "`political itegrity, ecoomic security, or the health ad welfare of the tribe,' " ad remaded to the District Court for that determiatio to be made. (quotig ). We grated certiorari. II The Court's earliest cases addressig attempts by States to exercise domiio over the reservatio lads of proceeded from Chief Justice Marshall's premise that the "several Idia atios [costitute] distict political commuities, havig territorial boudaries, withi which their authority is exclusive" Because Cogress, pursuat to its costitutioal authority both "[t]o regulate Commerce with the Idia s" ad to make treaties, U. S. Cost., Art. I, 8, cl. 3; Art II, 2, cl. 2, had determied by law ad treaty that "all itercourse with them [would] be carried o exclusively by the [Federal Govermet]," the Court cocluded that withi reservatios state jurisdictio would geerally ot lie. The assertio of taxig authority was ot excepted from this priciple. E. g., The Kasas ; The New York The "platoic otios of Idia sovereigty" that guided Chief Justice Marshall have, over time, lost their idepedet sway. See ; Orgaized Village of Cogress abolished treaty makig with the Idia atios i 1871, Rev. Stat. 20, as ameded, 25 U.S. C. 71, ad has itself subjected the tribes to substatial bodies of state ad federal law. This Court's more recet cases have recogized the rights of States, abset a cogressioal prohibitio, to exercise crimial (ad, implicitly, civil) jurisdictio over o- located *258 o reservatio lads. See, e. g., New York ex rel. ; see also Hadbook of Federal Idia Law, at 352, ad 39. We have eve observed that state jurisdictio over the relatios betwee reservatio ad o- may be permitted uless the applicatio of state laws "would |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | may be permitted uless the applicatio of state laws "would iterfere with reservatio self-govermet or impair a right grated or reserved by federal law." Orgaized Village of I the area of state taxatio, however, Chief Justice Marshall's observatio that "the power to tax ivolves the power to destroy," has couseled a more categorical approach: "[A]bset cessio of jurisdictio or other federal statutes permittig it," we have held, a State is without power to tax reservatio lads ad reservatio Mescalero Apache Ad our cases reveal a cosistet practice of decliig to fid that Cogress has authorized state taxatio uless it has "made its itetio to do so umistakably clear." ; see also Yakima Couty persuaded the Court of Appeals, ad urges upo us, that express authority for taxatio of fee-pateted lad is foud i 6 of the Geeral Allotmet Act, as ameded.[1] We have little doubt about the accuracy of that threshold assessmet. Our decisio i without eve metioig the Burke Act proviso, held that state tax laws were "[a]mog the laws to which [Idia allottees] became subject" uder 6 upo the expiratio of the Dawes Act trust period. Ad we agree with the Court of Appeals that by specifically metioig immuity from lad taxatio "as oe of the restrictios that would be removed upo coveyace i fee," Cogress i the Burke Act proviso "maifest[ed] a clear itetio to permit the state to tax" such Idia lads. Neither the Yakima Natio or its pricipal amicus, the Uited States, vigorously disputes this.[2] Istead, they coted that 6 of that Act the Burke Act proviso icluded * is a dead letter, at least withi the cofies of a Idia reservatio. The argues that, by termiatig the allotmet program ad restorig tribal itegrity through the Idia Reorgaizatio Act of 1934, Cogress impliedly repealed 6's jurisdictioal grat ad retured the law to its pre-Geeral Allotmet Act foudatios. Cogress' subsequet actios, accordig to the cofirm this implicatio. I 1948, for istace, Cogress defied "Idia coutry" to iclude all fee lad withi the boudaries of a existig reservatio, whether or ot held by a Idia, ad pre-empted state crimial laws withi "Idia coutry" isofar as offeses by ad agaist were cocered. See Act of Jue 25, 1948, -8, as ameded, 18 U.S. C. 1151-1153; Ad i 1953, Cogress oce agai sigaled its belief i the dormitio of 6 by eactig Pub. L. 280, which authorized States to assume crimial ad civil jurisdictio over withi Idia coutry i certai circumstaces. See Act of Aug. 15, 1953, Though geerally i agreemet with the the Uited States takes |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | Though geerally i agreemet with the the Uited States takes a slightly differet tack. It claims that the Geeral Allotmet Act removed oly those barriers to state jurisdictio that existed at the time of its eactmet, e. g., those associated with tribal sovereigty ad the trust status of allotted lad. The Geeral Allotmet Act did ot remove ideed, the argumet goes, could ot have removed a jurisdictioal bar arisig after the Act's passage. For just such a after-arisig jurisdictioal bar, the Uited States poits to the same statutes o which the rests its positio. I the Uited States' view, these eactmets must be costrued to pre-empt the applicatio "of state laws (especially state tax laws) to ad their property withi a reservatio." Brief for Uited States as Amicus Curiae 14. *261 I support of their coverget argumets, the Yakima Natio ad the Uited States cite this Court's uaimous decisio i which they coted repudiates the cotiuig jurisdictioal force of the Geeral Allotmet Act. I that case, the State of Motaa sought to impose its cigarette sales ad persoal property taxes, as well as vedorlicesig fees, o Idia residets of a reservatio located etirely withi the State. It relied for jurisdictio upo 6 of the Geeral Allotmet Act, but did ot limit its claim of taxig authority to the reservatio's allottees or eve to those activities takig place o allotted reservatio fee lad. Istead, the State made a "all or othig" claim to reservatio-wide jurisdictio (trust lad icluded), arguig that ay scheme of divided jurisdictio would be iequitable. Brief for Appellats i O. T. 19, No. 74-1656, p. 17. We declied Motaa's ivitatio to igore the plai laguage of 6, which "[b]y its terms [did] ot reach residig" or coductig busiess o trust lads. The assertio of reservatio-wide jurisdictio, we said, could ot be sustaied. But we wet much further: I light of Cogress' repudiatio i 1934 of the policies behid the Geeral Allotmet Act, we cocluded that the Act could o loger be read to provide Motaa pleary jurisdictio eve over those residig o reservatio fee lads: "The State has referred us to o decisioal authority ad we kow of oe givig the meaig for which it coteds to 6 of the Geeral Allotmet Act i the face of the may ad complex iterveig jurisdictioal statutes directed at the reach of state law withi reservatio lads Cogress by its more moder legislatio has eviced a clear itet to eschew ay such `checkerboard' approach withi a existig Idia reservatio, ad our cases have i tur followed Cogress' |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | Idia reservatio, ad our cases have i tur followed Cogress' lead i this area." *262 Reasoig from the Yakima Natio ad the Uited States argue that if 6 o loger provides for pleary state jurisdictio over the owers of reservatio fee lads, the it caot support the exercise of the arrower jurisdictio asserted by Yakima Couty here. They cocede, as they must, that i the Court did ot address the Burke Act proviso to 6, which figures so promietly i Yakima Couty's aalysis. But real property taxes were ot at issue i they argue, makig the proviso irrelevat. Ad because a proviso ca oly operate withi the reach of the pricipal provisio it modifies, cf. Uited either the laguage of 6 proper or the proviso ca be cosidered effective after We thik this view rests upo a misuderstadig of ad a misperceptio of the structure of the Geeral Allotmet Act. As to the former: The 's ad the Uited States' iterpretatio of our opiio i reduces ultimately to the propositio that we held 6 to have bee repealed by implicatio. That is ot supportable, however, sice it is a "cardial rule that repeals by implicatio are ot favored," ad sice we made o metio of implied repeal i our opiio. was premised, istead, o the implausibility, i light of Cogress' post allotmet era legislatio, of Motaa's costructio of 6 that would exted the State's i persoam jurisdictio beyod the sectio's literal coverage ("each ad every allotted ") to iclude subsequet Idia owers (through grat or devise) of the allotted parcels. This approach, we said, would create a "checkerboard" patter i which a Idia's persoal law would deped upo his parcel owership; it would cotradict "the may ad complex iterveig jurisdictioal statutes" dealig with States' civil ad crimial jurisdictio over reservatio ; ad it would produce almost surreal admiistrative problems, makig the applicable law of civil relatios deped ot upo the locus of the trasactio but upo the character of the *263 reservatio lad owed by oe or both parties. See Thus, eve as to 6 persoal jurisdictio, i o way cotradicts which ivolved the persoal liability for taxes of a Idia who ot merely owed a allotted parcel, but was, as the laguage of 6 requires, himself a allotted. See But (ad ow we come to the misperceptio cocerig the structure of the Geeral Allotmet Act) Goudy did ot rest exclusively, or eve primarily, o the 6 grat of persoal jurisdictio over allottees to sustai the lad taxes at issue. Istead, it was the alieability of the allotted lads |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | Istead, it was the alieability of the allotted lads a cosequece produced i these cases ot by 6 of the Geeral Allotmet Act, but by 5[3] that the Court foud of cetral sigificace. As the first basis of its decisio, before reachig the "further" poit of persoal jurisdictio uder 6, at the Goudy Court said that, although it was certaily possible for Cogress to "grat the power of volutary sale, while withholdig the lad from taxatio or forced alieatio," such a itet would ot be presumed uless it was "clearly maifested." For "it would seem strage to withdraw [the] protectio [of the restrictio o alieatio] ad permit the Idia to dispose of his lads as he pleases, while at the same time releasig it [sic] from taxatio." Thus, whe 5 redered the allotted lads alieable ad ecumberable, *264 it also redered them subject to assessmet ad forced sale for taxes. The Burke Act proviso, eacted i 1906, made this implicatio of 5 explicit, ad its ature more clear. As we have explaied, the purpose of the Burke Act was to chage the outcome of our decisio i I re so that 6's geeral grat of civil ad crimial jurisdictio over Idia allottees would ot be effective util the 25-year trust period expired ad patets were issued i fee. The proviso, however, eabled the Secretary of the Iterior to issue fee patets to certai allottees before expiratio of the trust period. Although such a fee patet would ot subject its Idia ower to pleary state jurisdictio, fee owership would free the lad of "all restrictios as to sale, icumbrace, or taxatio." 25 U.S. C. 349. I other words, the proviso reaffirmed for such "prematurely" pateted lad what 5 of the Geeral Allotmet Act implied with respect to pateted lad geerally: subjectio to state real estate taxes.[4] Ad whe Cogress, i 1934, while puttig a ed to further allotmet of reservatio lad, see 25 U.S. C. 461, chose ot to retur allotted lad to pre-Geeral Allotmet Act status, leavig it fully alieable by the allottees, their heirs, ad assigs, see ; it chose ot to termiate state taxatio upo those lads as well. The Yakima Natio ad the Uited States deplore what they cosider the impracticable, -codemed "checkerboard" effect produced by Yakima Couty's assertio of jurisdictio *265 over reservatio fee-pateted lad. But because the jurisdictio is i rem rather tha i persoam, it is assuredly ot -codemed; ad it is ot impracticable either. The parcel-by-parcel determiatios that the State's tax assessor is required to make o the reservatio do ot |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | assessor is required to make o the reservatio do ot differ sigificatly from those he must make off the reservatio, to take accout of immuities or exemptios ejoyed, for example, by federally owed, state-owed, ad churchowed lads. We caot resist observig, moreover, that the 's ad the Uited States' favored dispositio also produces a "checkerboard," ad oe that is less readily admiistered: They would allow state taxatio of oly those fee lads owed (from time to time) by omembers of the See Brief for Yakima Natio 16, 8; Brief for Uited States as Amicus Curiae 14, 12. See also (affirmig "checkerboard" with respect to zoig power over reservatio fee lad). Turig away from the statutory texts altogether, the Yakima Natio argues that state jurisdictio over reservatio fee lad is maifestly icosistet with the policies of Idia self-determiatio ad self-goverace that lay behid the Idia Reorgaizatio Act ad subsequet cogressioal eactmets. This seems to us a great exaggeratio. While the i persoam jurisdictio over reservatio at issue i would have bee sigificatly disruptive of tribal self-govermet, the mere power to assess ad collect a tax o certai real estate is ot. I ay case, these policy objectios do ot belog i this forum. If the Yakima Natio believes that the objectives of the Idia Reorgaizatio Act are too much obstructed by the clearly retaied remat of a earlier policy, it must make that argumet to Cogress. Judges "are ot at liberty to pick ad choose amog cogressioal eactmets, ad whe two [or more] statutes are capable of co-existece, it is the duty of the courts, abset a clearly expressed cogressioal itetio to the cotrary, to *266 regard each as effective." III Yakima Couty sought to impose two separate taxes with respect to reservatio fee lads, a ad valorem tax ad a excise tax o sales. We discuss each i tur, i light of the priciples set forth above. A Liability for the ad valorem tax flows exclusively from owership of realty o the aual date of assessmet. See Timber Traders, The tax, moreover, creates a burde o the property aloe. See Wash. Rev. Code 84.60.020 ; 146-1 See also Timber Traders, I re Electric City, The Court of Appeals held, the does ot dispute, ad we agree, that this ad valorem tax costitutes "taxatio of lad" withi the meaig of the Geeral Allotmet Act ad is therefore prima facie valid. The Court of Appeals, however, derived from our decisio three Terms ago i the coclusio that the Yakima Natio has a "protectible iterest" agaist impositio of the tax o members upo |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | "protectible iterest" agaist impositio of the tax o members upo demostratio of the evils described i that opiio, ad remaded to the District Court for further fidigs i that regard. Neither of the parties supports this aspect of the Nith Circuit's rulig, believig that the law affords a ucoditioal aswer to permissibility of the tax. We agree. addressed a challege to the Yakima Natio's assertio of authority to zoe reservatio fee lad owed by o-. The cocept of "protectible iterest" to which *2 Justice White's opiio i the case referred, see 492 U.S., grew out of a log lie of cases explorig the very arrow powers reserved to tribes over the coduct of o withi their reservatios. See Eve though a tribe's "iheret sovereig powers do ot exted to the activities of omembers, [a] tribe may retai iheret power to exercise civil authority over the coduct of o- o fee lads withi its reservatio whe that coduct threates or has some direct effect o the political itegrity, the ecoomic security, or the health or welfare of the tribe." at 565- ad its reasoig are ot applicable to the preset cases, which ivolve ot a proposed extesio of a tribe's iheret powers, but a asserted restrictio of a State's cogressioally coferred powers. Moreover, as the Court observed recetly i 480 U. S., at we have traditioally followed "a per se rule" "[i] the special area of state taxatio of Idia tribes ad tribal members." Though the rule has bee most ofte applied to produce categorical prohibitio of state taxatio whe there has bee o "cessio of jurisdictio or other federal [legislative permissio]," Mescalero Apache 411 U. S., at we thik it also applies to produce categorical allowace of state taxatio whe it has i fact bee authorized by Cogress. "Either Cogress iteded to pre-empt the state taxig authority or it did ot. Balacig of iterests is ot the appropriate gauge for determiig validity sice it is that very balacig which we have reserved to Cogress." 4 U.S. 134, If the Nith Circuit's test were the law, litigatio would surely egulf the States' aual assessmet ad taxatio process, with the validity of each levy depedet upo a multiplicity of factors that vary from year to year, *268 ad from parcel to parcel. For reasos of practicality, as well as text, we adhere to our per se approach. B We thik the excise tax o sales of fee lad is aother matter, as did the Court of Appeals. While the Burke Act proviso does ot purport to describe the etire rage of i |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | does ot purport to describe the etire rage of i rem jurisdictio States may exercise with respect to feepateted reservatio lad, we thik it does describe the etire rage of jurisdictio to tax. Ad that descriptio is "taxatio of lad." Yakima Couty seeks to expad this text by citig our statemet i to the effect that "[t]he literal laguage of the [Burke Act] proviso evices a cogressioal itet to subject a Idia allotmet to all taxes" after it has bee pateted i fee. This dictum was addressed, however, to the Uited States' assertio that the Geeral Allotmet Act barred oly States ad localities, ad ot the Federal Govermet, from levyig taxes o Idia allotmets durig the trust period. "All taxes," i the sese of federal as well as local, i o way expads the text beyod "taxatio of lad. " It does ot exceed the bouds of permissible costructio to iterpret "taxatio of lad" as icludig taxatio of the proceeds from sale of lad; ad it is eve true that such a costructio would be fully i accord with Goudy `s emphasis upo the cosequeces of alieability, which uderlay the Burke Act proviso. That is surely ot, however, the phrase's uambiguous meaig as is show by the Washigto Supreme Court's ow observatio that "a tax upo the sale of property is ot a tax upo the subject matter of that sale." It is quite reasoable to say, i other words, that though the object of the sale here is lad, that does ot make lad the object of the tax, ad hece does ot *269 ivoke the Burke Act proviso. Whe we are faced with these two possible costructios, our choice betwee them must be dictated by a priciple deeply rooted i this Court's Idia jurisprudece: "[S]tatutes are to be costrued liberally i favor of the with ambiguous provisios iterpreted to their beefit." 1 U. S., at 766. See also To reder this a "taxatio of lad" i the arrow sese, it does ot suffice that, uder Washigto law, the excise tax creates "a specific lie upo each piece of real property sold from the time of sale util the tax shall have bee paid" Wash. Rev. Code 82.45.070 A lie upo real estate to satisfy a tax does ot covert the tax ito a tax upo real estate otherwise all sorts of state taxatio of reservatioIdia activities could be validated (eve the cigarette sales tax disallowed i ) by merely makig the upaid tax assessable agaist the taxpayer's fee-pateted real estate. Thus, we caot eve accept the |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | taxpayer's fee-pateted real estate. Thus, we caot eve accept the couty's arrower cotetio that the excise tax lie is eforceable agaist reservatio fee property coveyed by a Idia seller to a o-Idia buyer. The excise tax remais a tax upo the Idia's activity of sellig the lad, ad thus is void, whatever meas may be devised for its collectio. Cf., e. g., (Idia proprietors may be compelled to pre collect taxes whose icidece legally falls o o); The short of the matter is that the Geeral Allotmet Act explicitly authorizes oly "taxatio of lad," ot "taxatio with respect to lad," "taxatio of trasactios ivolvig lad," or "taxatio based o the value of lad." Because it is emietly reasoable to iterpret that laguage as ot icludig a tax upo the sale of real estate, our cases require us to apply that iterpretatio for the beefit of the *270 Accordigly, Yakima Couty's excise tax o sales of lad caot be sustaied. * * * We hold that the Geeral Allotmet Act permits Yakima Couty to impose a ad valorem tax o reservatio lad pateted i fee pursuat to the Act, but does ot allow the couty to eforce its excise tax o sales of such lad. The Yakima Natio coteds it is ot clear whether the parcels at issue i these cases were pateted uder the Geeral Allotmet Act, rather tha uder some other statutes i force prior to the Idia Reorgaizatio Act. E. g., 25 U.S. C. 320, 3, 404, 405. We leave for resolutio o remad that factual poit, ad the prior legal questio whether it makes ay differece. The judgmet is affirmed, ad the cause is remaded for further proceedigs cosistet with this opiio. It is so ordered. Justice Blackmu, cocurrig i part ad dissetig i part. I have wadered the maze of Idia statutes ad case law tracig back 100 years. Ulike the Court, however, I am uable to fid a "umistakably clear" itet of Cogress to allow the States to tax Idia-owed fee-pateted lads. Accordigly, while I cocur with the majority's coclusio that Yakima Couty may ot impose excise taxes, I disset from its coclusio that the couty may impose ad valorem taxes o Idia-owed fee-pateted lads. The Court correctly sets forth the "`umistakably clear' " itet stadard to be applied. Ate, at 258. But the, i my view, it seriously misapplies it, over the well-take objectios of the Yakima Natio ad agaist the soud guidace of the Uited States as amicus curiae. At bottom, I believe the Court misappreheds the ature of federal pre-emptio aalysis ad, |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | the Court misappreheds the ature of federal pre-emptio aalysis ad, as a result, dramatically devalues logstadig *271 federal policies iteded to preserve the itegrity of our Natio's Idia tribes. As I see it, the Court errs i three ways i arrivig at its fidig of "umistakably clear" itet to allow taxatio of Idia-owed fee-pateted lads. First, it divies "umistakably clear" itet from a proviso, which by its very terms applies oly to lad pateted prematurely (ad ot to all pateted lad) ad which is ow orphaed, its atecedet pricipal clause o loger havig ay force of law. Secod, actig o its ow ituitio that it would be "strage" for lad to be alieable ad ecumberable yet ot taxable, the Court ifers "umistakably clear" itet of Cogress from a otherwise irrelevat statutory sectio that itself makes o metio of taxatio of fee lads. Fially, misapprehedig the ature of federal pre-emptio of state laws taxig the the Court mistakely assumes that it caot give ay effect to the may complex iterveig statutes reflectig a complete turabout i federal Idia policy ow aimed at preservig tribal itegrity ad the Idia lad base sice eactmet at the tur of the cetury of the statutory provisios upo which the Court relies. These curret ad ow logstadig federal policies weigh decisively agaist the Court's fidig that Cogress has iteded the States to tax ad, as i these cases, to foreclose upo Idia-held lads. 1. The majority cocedes that the pricipal clause of 6 of the Dawes Act, which subjected allottees to the pleary civil ad crimial jurisdictio of the States, ca "o loger be read to provide pleary jurisdictio eve as to those residig o reservatio fee lads." Ate, at 261. See also DeCoteau v. District Couty Court, 427, 2 (recogizig that statutory defiitio of "Idia coutry," which icludes all reservatio lad "otwithstadig the issuace of ay patet," 18 U.S. C. 1151, demarcates geeral boudary of civil jurisdictio of States); -178, ad 17 (discussig more recet cogressioal eactmets, *272 i. e., Pub. L. 280 ad the Idia Civil Rights Act of 1968, givig States civil ad crimial jurisdictio over reservatios but oly upo coset of the affected tribe). Rather tha rely o the pricipal clause of 6, the Court turs to a proviso added by the Burke Act, eacted i 1906.[1]Ate, at 264. It ackowledges that the proviso was ot eve metioed i[2] a case upo which the majority relies. Ate, at 258-259. As a iitial matter, the proviso's attachmet to a obsolete pricipal clause, if aythig, must dimiish its force as a |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | pricipal clause, if aythig, must dimiish its force as a measure of cogressioal itet. Moreover, by its terms, the proviso does ot remove "restrictios as to taxatio" from all allotted lad. It removes restrictios solely from allotted lad that happeed to be pateted i fee "prematurely," i. e., prior to the expiratio of the 25-year trust period. To be sure, the proviso could be read to suggest that Cogress possibly iteded taxatio of allotted lads other tha those lads pateted prematurely.[3] But a possibility, or eve a likelihood, does ot meet this Court's demadig stadard of "umistakably clear" itet. *273 2. Ad so the Court turs to 5 of the Dawes Act for support. The majority claims that "the proviso reaffirmed for such `prematurely' pateted lad what 5 of the [Dawes Act] implied with respect to pateted lad geerally: subjectio to state real estate taxes." Ate, at 264 Because 5 reders fee-pateted lads alieable ad ecumberable, the majority suggests that "`it would seem strage to withdraw [the] protectio [of the restrictio o alieatio] ad permit the Idia to dispose of his lads as he pleases, while at the same time releasig it [sic] from taxatio.' " Ate, at 263 (quotig 203 U. S., at ). The majority cocedes that 5 oly "implied" this coclusio. Ate, at 263. I my view, a "mere implicatio" falls far short of the "umistakably clear" itet stadard. Cf. EEOC v. Arabia America Oil Co., U.S. 244, (Scalia, J., cocurrig i part ad cocurrig i judgmet) ("Give the presumptio agaist extra territoriality ad the requiremet that the itet to overcome it be `clearly expressed,' it is i my view ot reasoable to give effect to mere implicatios from the statutory laguage as the EEOC has doe"). Nor ca what this Court fids "strage" substitute for the "umistakably clear" itet of Cogress. To impute to Cogress a itet to tax Idia lad because the Court thiks it "strage" ot to do so overlooks the coutervailig presumptio that "Cogress has acted cosistetly upo the assumptio that the States have o power to regulate the affairs of o a reservatio." I eed ot pass upo the wisdom of the majority's fiscal theory that if lad is alieable ad ecumberable, it must be taxable. I pause oly to commet that Cogress has made its ow agreemet with this particular ecoomic theory less tha "umistakably clear." Cf. Locher v. New York, (Holmes, J., dissetig) ("This case is decided upo a ecoomic theory which a large part of the coutry does ot etertai"). *274 3. I ay evet, if "strageess" is the |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | etertai"). *274 3. I ay evet, if "strageess" is the bechmark of what Cogress umistakably iteds, I fid it strager still to presume that Cogress iteds States to tax ad, as i these cases, foreclose upo Idia-owed reservatio lads. This presumptio does ot accout for Cogress' "abrupt" termiatio of the assimilatioist policies of the Dawes Act i favor of the Idia Reorgaizatio Act's ow wellestablished "priciples of tribal self-determiatio ad selfgoverace." See ate, at 255. The Court aouces that the Yakima's "policy objectios do ot belog i this forum." Ate, at 265. Yet, ot to cosider the policies of the Idia Reorgaizatio Act is to forget that "we previously have costrued the effect of legislatio affectig reservatio i light of `iterveig' legislative eactmets." Brya v. Itasca Couty, See also 9 (otig that State's iterpretatio of 6 of the Dawes Act caot survive "the may ad complex iterveig jurisdictioal statutes" subsequetly eacted). The majority appears to assume that these iterveig eactmets eed ot be give ay effect here, because they do ot rise to the level of a "repeal" of the Dawes ad Burke Acts. Ate, at 262. I agree with the majority that implied repeals are ot favored. But this is beside the poit. A "repeal" whether express or implied eed ot be show to preclude the States from taxig Idia lads. As i all state-Idia jurisdictio cases, the relevat iquiry is whether Cogress has pre-empted state law, ot whether it has repealed its ow law. See, e. g., ; Brya v. Itasca Couty, 2. Uder established priciples of pre-emptio, ad otwithstadig the majority's derisive characterizatios, see ate, at 264-265, state laws may i fact give way to "mere" federal policies ad iterests. See Eglish v. Geeral Electric Co., (state law is pre-empted to the extet that it *2 "`stads as a obstacle to the accomplishmet ad executio of the full purposes ad objectives of Cogress' ") ) ). Thus, i the Idia cotext, "`[s]tate jurisdictio is pre-empted if it iterferes or is icompatible with federal ad tribal iterests reflected i federal law, uless the state iterests at stake are sufficiet to justify the assertio of state authority.' " 480 U. S., at ).[4] See also White Moutai Apache v. Bracker, (recogizig "firm federal policy" of promotig tribal self-sufficiecy ad ecoomic developmet ad otig that the pre-emptio iquiry "call[s] for a particularized iquiry ito the ature of the state, federal, ad tribal iterests at stake") Accordigly, this Court has made clear that "[t]he iquiry is to proceed i light of traditioal otios of Idia sovereigty ad |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | proceed i light of traditioal otios of Idia sovereigty ad the cogressioal goal of Idia self-govermet, icludig its `overridig goal' of ecouragig tribal selfsufficiecy ad ecoomic developmet." Cabazo, 480 U. S., at I Cabazo, for example, the Court gave weight to recet policy statemets by Cogress ad the Presidet i support of Idia autoomy ad self-determiatio, deemig them to be "particularly sigificat i this case." at 19; see also ad 20-21.[5] *276 I believe that if the majority were iclied to give federal policy iterests ay effect, its coclusio as to Cogress' "umistakably clear" itet would doubtless be differet today. The ature of federal policy iterests emerges clearly from a review of the effects of the Idia lad-allotmet policies. Durig the allotmet period from 1887 to 1934, Idia ladholdigs were reduced atiowide, through a combiatio of sales by allottees to o- ad Govermet sales of "surplus" uallotted lads, from about 138 millio acres to 48 millio acres. See F. Hadbook of Federal Idia Law 138 (1982). Of the 90 millio acres lost, about 27 millio acres passed from to o-, as a result of the alieability of the ewly allotted lad. See also Readjustmet of Idia Affairs, Hearigs o H. R. 02 before the House Committee o Idia Affairs, 73d Cog., 2d Sess., 17 (Comm. Prit 1934) (Memoradum of Joh Collier, Commissioer of Idia Affairs) (Hearigs). For 12,000 years, the Yakima have lived o their lads i easter Washigto. See H. Schuster, The Yakima 14 Because of the allotmet policies, o- today ow more tha a quarter millio acres, more tha half the lad origially allotted to idividual members of the Yakimas. "Allotmet ad the subsequet sale or lease of Idia lads accomplished what the `geocide' of epidemics, war, ad bootlegged alcohol had ot bee able to do: a systematic `ethocide' brought about by a loss of Idia idetity with the loss of lad." H. Schuster, The Yakimas: A Critical Bibliography 70 (1982). It is little woder that, as Cogress moved toward repudiatig the allotmet system i 1934, the Commissioer of Idia Affairs iformed Cogress: "It is difficult to imagie ay other system which with equal effectiveess would pauperize the Idia while impoverishig him, ad sicke ad kill his soul while pauperizig him, ad cast him i so ruied a coditio *277 ito the fial status of a oward depedet upo the States ad couties." Hearigs, at 18. I am mystified how this Court, siftig through the wreckage of the Dawes Act, fids ay "clearly retaied remat," ate, at 265, justifyig further erosios through tax foreclosure actios as i |
Justice Scalia | 1,992 | 9 | majority | Countyof Yakima v. Confederated Tribes and Bands of Yakima Nation | https://www.courtlistener.com/opinion/112674/countyof-yakima-v-confederated-tribes-and-bands-of-yakima-nation/ | justifyig further erosios through tax foreclosure actios as i this litigatio to the ladholdigs of the Idia people.[6] The majority deems ay cocers for tribal selfdetermiatio to be a "great exaggeratio." Ate, at 265. I myself, however, am "far from coviced that whe a State imposes taxes upo reservatio members without their coset, its actio ca be recociled with tribal self-determiatio." 411 U. S., at 1. The majority cocludes that, as a practical matter, "mere" property taxes are less disruptive of tribal itegrity tha cigarette sales taxes ad certai persoal property taxes (as o automobiles) that were at issue i Ate, at 264-265. I caot agree that payig a few more peies for cigarettes or a tax o some persoal property is more a threat to tribal itegrity ad selfdetermiatio tha foreclosig upo ad seizig tribal lads. *278 Fially, the majority platitudiously suggests that the Yakima "must make [their policy] argumet to Cogress." Ate, at 265. I am less cofidet tha my colleagues that the 31 Yakima Idia families likely to be redered ladless ad homeless by today's decisio are well positioed to lobby for chage i the vast corridors of Cogress. |
Justice Douglas | 1,975 | 10 | dissenting | Wheeler v. Barrera | https://www.courtlistener.com/opinion/109062/wheeler-v-barrera/ | The case comes to us in an attractive posture, as the Act of Congress is in terms aimed to help "educationally deprived" children, whether they are in public or parochial schools, and I fear the judiciary has been seduced. But we must remember that "the propriety of a legislature's purposes may not immunize from further scrutiny a law which either has a primary effect that advances religion, or which fosters excessive entanglements *430 between Church and State." Committee for Public All education in essence is aimed to help children. whether bright or retarded. Schools do not exist whether public or parochialto keep teachers employed. Education is a skein with many threadsfrom classical Greek to Latin, to grammar, to philosophy, to science, to athletics, to religion. There might well be political motivation to use federal funds to make up deficits in any part of a school's budget or to strengthen it by financing all or a part of any sector of educational activity. There are some who think it constitutionally wise to do so; and others who think it is constitutionally permissible. But the First Amendment says: "Congress shall make no law respecting an establishment of religion." In common understanding there is no surer way of "establishing" an institution than by financing it. That was true at the time of the adoption of the First Amendment. Madison, one of its foremost authors, fought the battle in Virginia where the per capita minimal levy on each person was no more than three pence. Yet if the State could finance a church at three pence per capita, the principle of "establishment" would be approved and there would be no limit to the amount of money the Government could add to church coffers. That was the teaching of his Remonstrance.[1] As Mr. Justice Black stated it, "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice *431 religion."[2] Parochial schools are adjuncts of the church established at a time when state governments were highly discriminatory against some sects by introducing religious training in the public schools. The tale has been told often;[3] and there is no need to repeat it here. Parochial schools are tied to the proclamation and inculcation of a particular religious faithsometimes Catholic, sometimes Presbyterian, sometimes Anglican, sometimes Lutheran, and so on. The emanations from the Court's opinion are, as suggested by MR. JUSTICE WHITE, at war with our prior decisions. Federal financing of an apparently nonsectarian aspect |
Justice Douglas | 1,975 | 10 | dissenting | Wheeler v. Barrera | https://www.courtlistener.com/opinion/109062/wheeler-v-barrera/ | our prior decisions. Federal financing of an apparently nonsectarian aspect of parochial school activities, if allowed, is not even a subtle evasion of First Amendment prohibitions. The parochial school is a unit; its budget is a unit; pouring in federal funds for what seems to be a nonsectarian phase of parochial school activities "establishes" the school so that in effect, if not in purpose, it becomes stronger financially and better able to proselytize its particular faith by having more funds left over for that objective. Allowing the State to finance the secular part of a sectarian school's program "makes a grave constitutional decision turn merely on cost accounting and *432 bookkeeping entries." (DOUGLAS, J., concurring). Nor could the program here be immunized from scrutiny under the Establishment Clause by portraying this aid as going to the children rather than to the sectarian schools. See Committee for Public at 781 et seq. That argument deserves no more weight in the Establishment Clause context than it received under the Equal Protection Clause of the Fourteenth Amendment, with respect to which we summarily affirmed decisions striking down state schemes to circumvent the constitutional requirement of racial integration in public schools granting tuition aid to parents who sent their children to segregated private schools. aff'd, and aff'd, And see The present case is plainly not moot; a case or controversy exists; and it is clear that if the traditional First Amendment barriers are to be maintained, no program serving students in parochial schools could be designed under this Actwhether regular school hours are used, or after-school hours, or weekend hours. The plain truth is that under the First Amendment, as construed to this day, the Act is unconstitutional to the extent it supports sectarian schools, whether directly or through its students. We should say so now, and save the endless hours and efforts which hopeful people will expend in an effort to constitutionalize what is impossible without a constitutional amendment. |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | For centuries prostitutes have been plying their trade on other people's property. Assignations have occurred in palaces, luxury hotels, cruise ships, college dormitories, truck stops, back alleys and back seats. A profession of this vintage has provided governments with countless opportunities to use novel weapons to curtail its abuses. As far as I am aware, however, it was not until 188 that any State decided to experiment with the punishment of innocent third parties by confiscating property in which, or on which, a single transaction with a prostitute has been consummated. The logic of the Court's analysis would permit the to exercise virtually unbridled power to confiscate vast amounts of property where professional criminals have engaged in illegal acts. Some airline passengers have marijuana cigarettes in their luggage; some hotel guests are thieves; some spectators at professional sports events carry concealed weapons; and some hitchhikers are prostitutes. The State surely may impose strict obligations on the owners of airlines, hotels, stadiums, and vehicles to exercise a high degree of care to prevent others from making illegal use of their property, but neither logic nor history supports the *45 Court's apparent assumption that their complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction. In order to emphasize the novelty of the Court's holding, I shall first comment on the tenuous connection between the property forfeited here and the illegal act that was intended to be punished, which differentiates this case from the precedent on which the Court relies. I shall then comment on the significance of the complete lack of culpability ascribable to petitioner in this case. Finally, I shall explain why I believe our recent decision in compels reversal. I For purposes of analysis it is useful to identify three different categories of property that are subject to seizure: pure contraband; proceeds of criminal activity; and tools of the criminal's trade. The first categorypure contrabandencompasses items such as adulterated food, sawed-off shotguns, narcotics, and smuggled goods. With respect to such "objects the possession of which, without more, constitutes a crime," One 158 Plymouth the government has an obvious remedial interest in removing the items from private circulation, however blameless or unknowing their owners may be. The ' broad and well-established power to seize pure contraband is not implicated by this case, for automobiles are not contraband. See The second categoryproceedstraditionally covered only stolen property, whose return to its original owner has a powerful restitutionary justification. Recent federal statutory enactments have dramatically enlarged this category to include the |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | statutory enactments have dramatically enlarged this category to include the earnings from various illegal transactions. See United v. Parcel of Rumson, N. J., Land, 507 U. S. *460 111, 121, n. 16 Because those federal statutes include protections for innocent owners, see 21 U.S. C. 881(a)(6), cases arising out of the seizure of proceeds do not address the question whether the Constitution would provide a defense to an innocent owner in certain circumstances if the statute had not done so. The prevalence of protection for innocent owners in such legislation does, however, lend support to the conclusion that elementary notions of fairness require some attention to the impact of a seizure on the rights of innocent parties.[1] The third category includes tools or instrumentalities that a wrongdoer has used in the commission of a crime, also known as "derivative contraband," see One 158 Plymouth 380 U. S., at Forfeiture is more problematic for this category of property than for the first two, both because of its potentially far broader sweep, and because the government's remedial interest in confiscation is less apparent. Many of our earliest cases arising out of these kinds of seizures involved ships that engaged in piracy on the high seas,[2] in the slave trade,[3] or in the smuggling of cargoes of goods into the United[4] These seizures by the sovereign *461 were approved despite the faultlessness of the ship's owner. Because the entire mission of the ship was unlawful, admiralty law treated the vessel itself as if it were the offender.[5] Moreover, under "the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability."[6] The early admiralty cases demonstrate that the law may reasonably presume that the owner of valuable property is aware of the principal use being made of that property. That presumption provides an adequate justification for the deprivation of one's title to real estate because of another's adverse possession for a period of years or for a seizure of such property because its principal use is unlawful. Thus, in Dobbins's we upheld the seizure of premises on which the lessee operated an unlawful distillery when the owner "knowingly suffer[ed] and permitt[ed] his land to be used as a site" for that distillery. And despite the faultlessness of their owners, we have upheld seizures of vehicles being used to transport *462 bootleg liquor, or to smuggle goods into the United in violation of our customs laws.[7] While our historical cases establish the propriety of seizing a freighter when its entire cargo consists of smuggled goods, none of |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | when its entire cargo consists of smuggled goods, none of them would justify the confiscation of an ocean liner just because one of its passengers sinned while on board. See, e. g., ; J. W. Goldsmith, Jr.-Grant The principal use of the car in this case was not to provide a site for petitioner's husband to carry out forbidden trysts. Indeed, there is no evidence in the record that the car had ever previously been used for a similar purpose. An isolated misuse of a stationary vehicle should not justify the forfeiture of an innocent owner's property on the theory that it constituted an instrumentality of the crime. This case differs from our historical precedents in a second, crucial way. In those cases, the vehicles or the property actually facilitated the offenses themselves. See ; Our leading decisions on forfeited conveyances, for example, involved offenses of which transportation was an element. In Van for example, the applicable statute prohibited transportation of intoxicating liquor. See See also In similarly, a yacht was seized because it had been used "to transport, or to facilitate the transportation of," a controlled substance. See[8] Here, on the other hand, the forfeited property bore no necessary connection to the offense committed by petitioner's husband. It is true that the act occurred in the car, but it might just as well have occurred in a multitude of other locations. The mobile character of the car played a part only in the negotiation, but not in the consummation, of the offense. In recent years, a majority of the Members of this Court has agreed that the concept of an instrumentality subject to forfeiturealso expressed as the idea of "tainted" items must have an outer limit. In the Court rejected the argument that a mobile home and auto body shop where an illegal drug transaction occurred were forfeitable as "instruments" of the drug trade. Justice Scalia agreed that a building in which an isolated drug sale happens to take place also cannot be regarded as an instrumentality of that offense. Justice Thomas, too, has stated that it is difficult to see how real property bearing no connection to crime other than serving as the location for a drug transaction is in any way "guilty" of an offense. See United The car in this case, however, *464 was used as little more than an enclosure for a one-time event, effectively no different from a piece of real property.[] By the rule laid down in our recent cases, that nexus is insufficient to support the forfeiture here. The State attempts to |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | insufficient to support the forfeiture here. The State attempts to characterize this forfeiture as serving exclusively remedial, as opposed to punitive, ends, because its goal was to abate what the State termed a "nuisance." Even if the State were correct, that argument would not rebut the excessiveness of the forfeiture, which I have discussed above. But in any event, there is no serious claim that the confiscation in this case was not punitive. The majority itself concedes that "`forfeiture serves, at least in part, to punish the owner.' " Ante, at 451 (quoting ).[10] At an earlier stage of this litigation, *465 the State unequivocally argued that confiscation of automobiles in the circumstances of this case "is swift and certain `punishment' of the voluntary vice consumer." Brief for Plaintiff-Appellant in No. 733 (Mich.), p. 22. Therefore, the idea that this forfeiture did not punish petitioner's husbandand, a fortiori, petitioner herselfis simply not sustainable. Even judged in isolation, the remedial interest in this forfeiture falls far short of that which we have found present in other cases. Forfeiture may serve remedial ends when removal of certain items (such as a burglar's tools) will prevent repeated violations of the law (such as housebreaking). See, e. g., United ; see also C. J. Hendry But confiscating petitioner's car does not disable her husband from using other venues for similar illegal rendezvous, since all that is needed to commit this offense is a place. In fact, according to testimony at trial, petitioner's husband had been sighted twice during the previous summer, without the car, soliciting prostitutes in the same neighborhood.[11] The remedial rationale is even less convincing according to the State's "nuisance" theory, for that theory treats the car as a nuisance only so long as the illegal event is occurring and only so long as the car is located in the relevant neighborhood. See n. The need to "abate" the car thus disappears the moment it leaves the area. In short, therefore, a remedial justification simply does not apply to a confiscation of this type. See generally Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn. L. Rev. 37, 47-480 (176). *466 II Apart from the lack of a sufficient nexus between petitioner's car and the offense her husband committed, I would reverse because petitioner is entirely without responsibility for that act. Fundamental fairness prohibits the punishment of innocent people. The majority insists that it is a settled rule that the owner of property is strictly liable for wrongful uses to which that property is put. See ante, |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | wrongful uses to which that property is put. See ante, at 446-450. Only three Terms ago, however, the Court surveyed the same historical antecedents and held that all of its forfeiture decisions rested, "at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence." 50 U. S., at 615 (citing Goldsmith-Grant Dobbins's Distillery, Harmony, and The Palmyra ). According to even the hoary fiction that property was forfeitable because of its own guilt was based on the idea that "` "such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture."` " 50 U.S., at 616, quoting Goldsmith-Grant -511, in turn quoting 1 W. Blackstone, Commentaries *301. It is conceded that petitioner was in no way negligent in her use or entrustment of the family car. Thus, no forfeiture should have been permitted. The majority, however, simply ignores `s detailed analysis of our case law without explanation or comment. Even assuming that strict liability applies to "innocent" owners, we have consistently recognized an exception for truly blameless individuals. The Court's opinion in CaleroToledo v. Pearson Yacht Leasing -60, established the proposition that the Constitution bars the punitive forfeiture of property when its owner alleges and proves that he took all reasonable steps to prevent its illegal use. Accord, 50 U. S., at 616-617. The majority *467 dismisses this statement as "obiter dictum, " ante, at 450, but we have assumed that such a principle existed, or expressly reserved the question, in a line of cases dating back nearly 200 years. In one of its earliest decisions, the Court, speaking through Chief Justice Marshall, recognized as "unquestionably a correct legal principle" that "a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed."[12] In other contexts, we have regarded as axiomatic that persons cannot be punished when they have done no wrong. See Southwestern Telegraph & Telephone v. Danaher, 40-41 (115) ; TXO Production 50 U.S. 443, ; (178); see also (17) I would hold now what we have always assumed: that the principle is required by due process. The unique facts of this case demonstrate that petitioner is entitled to the protection of that rule. The subject of this forfeiture was certainly not contraband. It was not acquired with the proceeds of criminal activity and its principal use was entirely legitimate. It was an ordinary car that petitioner's husband used |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | legitimate. It was an ordinary car that petitioner's husband used to commute to the steel mill where he worked. Petitioner testified that they had been married for nine years; that she had acquired her ownership interest in the vehicle by the expenditure of money that she had earned herself; that she had no knowledge of her husband's plans to do anything with the car except "come directly home from work," as he had always done before; and that she even called "Missing Persons" when he failed to return on the night in question. App. 8-10. Her testimony is not contradicted and certainly is credible. Without knowledge that he would commit such an act in the family car, or that he had ever done so previously, surely petitioner cannot be accused of failing to take "reasonable steps" to prevent the illicit behavior. She is just as blameless as if a thief, rather than her husband, had used the car in a criminal episode. While the majority admits that this forfeiture is at least partly punitive in nature, it asserts that Michigan's law also serves a "deterrent purpose distinct from any punitive purpose." Ante, at 452. But that is no distinction at all; deterrence is itself one of the aims of punishment. United *46 v. Halper, 40 U.S. 435, (18).[13] Even on a deterrence rationale, moreover, that goal is not fairly served in the case of a person who has taken all reasonable steps to prevent an illegal act. Forfeiture of an innocent owner's property that plays a central role in a criminal enterprise may be justified on reasoning comparable to the basis for imposing liability on a principal for an agent's torts. Just as the risk of respondeat superior liability encourages employers to supervise more closely their employees' conduct, see 2, n. 5 (15) so the risk of forfeiture encourages owners to exercise care in entrusting their property to others, see ; ante, at 452. But the law of agency recognizes limits on the imposition of vicarious liability in situations where no deterrent function is likely to be served; for example, it exonerates the employer when the agent strays from his intended mission and embarks on a "frolic of his own." See also United v. Park, (175) (citation omitted). In this case, petitioner did not "entrust" the car to her husband on the night in question; he was entitled to use it by virtue of their joint ownership. There is no reason to think that the threat *470 of forfeiture will deter an individual from buying a car with her husbandor |
Justice Stevens | 1,996 | 16 | dissenting | Bennis v. Michigan | https://www.courtlistener.com/opinion/118005/bennis-v-michigan/ | deter an individual from buying a car with her husbandor from marrying him in the first placeif she neither knows nor has reason to know that he plans to use it wrongfully. The same is true of the second asserted justification for strict liability, that it relieves the State of the difficulty of proving collusion, or disproving the lack thereof, by the alleged innocent owner and the wrongdoer. See ante, at 452 (citing Van -468). Whatever validity that interest might have in another kind of case, it has none here. It is patently clear that petitioner did not collude with her husband to carry out this offense. The absence of any deterrent value reinforces the punitive nature of this forfeiture law. But petitioner has done nothing that warrants punishment. She cannot be accused of negligence or of any other dereliction in allowing her husband to use the car for the wholly legitimate purpose of transporting himself to and from his job. She affirmatively alleged and proved that she is not in any way responsible for the conduct that gave rise to the seizure. If anything, she was a victim of that conduct. In my opinion, these facts establish that the seizure constituted an arbitrary deprivation of property without due process of law.[14] *471 III The Court's holding today is dramatically at odds with our holding in We there established that when a forfeiture constitutes "payment to a sovereign as punishment for some offense"as it undeniably does in this caseit is subject to the limitations of the Eighth Amendment's Excessive Fines Clause. For both of the reasons I have already discussed, the forfeiture of petitioner's half interest in her car is surely a form of "excessive" punishment. For an individual who merely let her husband use her car to commute to work, even a modest penalty is out of all proportion to her blameworthiness; and when the assessment is confiscation of the entire car, simply because an illicit act took place once in the driver's seat, the punishment is plainly excessive. This penalty violates the Eighth Amendment for yet another reason. Under the Court's reasoning, the value of the car is irrelevant. A brand-new luxury sedan or a 10-year-old used car would be equally forfeitable. We have held that "dramatic variations" in the value of conveyances subject to forfeiture actions undercut any argument that the latter are reasonably tied to remedial ends. See 50 U. S., at 621; United v. Ward, U.S. 242, (180). I believe the Court errs today by assuming that the power to seize property is virtually unlimited |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | The Court concludes that it violates the Due Process Clause for the chief justice of the Supreme Court of Penn- sylvania, a former district attorney who was not the trial prosecutor in petitioner Terrance Williams’ case, to review Williams’ fourth petition for state postconviction review. Ante, –9, 14. That conclusion is flawed. The specter of bias alone in a judicial proceeding is not a deprivation of due process. Rather than constitutionalize every judicial disqualification rule, the Court has left such rules to legis- latures, bar associations, and the judgment of individual adjudicators. Williams, moreover, is not a criminal de- fendant. His complaint is instead that the due process protections in his state postconviction proceedings—an altogether new civil matter, not a continuation of his criminal trial—were lacking. Ruling in Williams’ favor, the Court ignores this posture and our precedents com- manding less of state postconviction proceedings than of criminal prosecutions involving defendants whose convic- tions are not yet final. I respectfully dissent. I A reader of the majority opinion might mistakenly think that the prosecution against Williams is ongoing, for the majority makes no mention of the fact that Williams’ 2 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting sentence has been final for more than 25 years. ecause the postconviction posture of this case is of crucial im- portance in considering the question presented, I begin with the protracted procedural history of Williams’ repeated attempts to collaterally attack his sentence. A Thirty-two years ago, Williams and his accomplice beat their victim to death with a tire iron and a socket wrench. –224, 570 A.2d 75, 77–78 (1990) (Williams I ). Williams later re- turned to the scene of the crime, a cemetery, soaked the victim’s body in gasoline, and set it on fire. After the trial against Williams com- menced, both the Chief of the Homicide Unit and the District Attorney, Ronald Castille, approved the trial prosecutor’s decision to seek the death penalty by signing a piece of paper. See App. 426. That was Castille’s only involvement in Williams’ criminal case. Thereafter, a Pennsylvania jury convicted Williams of first-degree mur- der, and he was sentenced to death. Williams I, Pa., at 221–, The Supreme Court of Penn- sylvania affirmed his conviction and sentence. Five years later, Williams filed his first petition for state postconviction relief. 581 Pa. 57, 65, The post- conviction court denied the petition. 863 A. 2d, at 510. Williams appealed, raising 23 alleged errors. The Supreme Court of Pennsylvania, which included Castille in his new capacity as a justice of that court, affirmed the denial of relief. The court |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | of that court, affirmed the denial of relief. The court rejected some claims on procedural grounds and denied the remaining claims on the merits. at –, –. The court’s lengthy opinion did not mention the possibility of Castille’s bias, and Williams Cite as: 579 U. S. (2016) 3 THOMAS, J., dissenting apparently never asked for his recusal. Then in 2005, Williams filed two more petitions for state postconviction relief. oth petitions were dismissed as untimely, and the Supreme Court of Pennsylvania af- firmed. 909 A. 2d 297 (2006) ( per curiam) (Williams III ); Commonwealth v. Williams, (Williams IV ). Castille also presumably participated in those proceedings, but, again, Williams apparently did not ask for him to recuse.1 Williams then made a fourth attempt to vacate his sentence in state court in 2012. Pa. 105 A.3d 1234, 1237 (2014) (Williams VI ). Williams alleged that the prosecution violated (1963), by failing to disclose exculpatory evidence. The allegedly exculpatory evidence was information about Williams’ motive. According to Williams, the prosecution should have disclosed to his counsel that it knew that Williams and the victim had previously engaged in a sexual relationship when Williams was a minor. Williams VI, Pa., at2 The state postcon- —————— 1 In 2005, Williams also filed a federal habeas petition, which the federal courts ultimately rejected. 238 (CA3 2011) (Williams V ), cert. denied, Williams v. Wetzel, 567 U. S. (2012). 2 Setting aside how a prosecutor could violate rady by failing to disclose information to the defendant about the defendant’s motive to kill, it is worth noting that this allegation merely repackaged old arguments. During a state postconviction hearing in 19, Williams had presented evidence of his prior sexual abuse, including “multiple sexual victimizations (including sodomy) during his childhood,” to support his ineffective assistance claim. Williams II, And he had “argued [that the victim] engaged in homosexual acts with him.” Williams VI, Pa., at Then, in his federal habeas proceed- ings, Williams admitted that his plan on the night of the murder was to threaten to reveal to the victim’s wife that the victim was a homosex- ual, and he contended that his attorney should have presented related 4 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting viction court agreed and vacated his sentence. at The Commonwealth appealed to the Supreme Court of Pennsylvania. Only then—the fourth time that Williams appeared before Castille—did Williams ask him to recuse. App. 181. Castille denied the recusal motion and declined to refer it to the full court. Shortly thereafter, the court vacated the postconviction court’s order and reinstated Williams’ sentence. The |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | vacated the postconviction court’s order and reinstated Williams’ sentence. The court first noted that Williams’ fourth petition “was filed over 20 years after [Williams’] judgment of sentence became final” and “was untimely on its face.” Williams VI, Pa., at 105 A. 3d, at 1239. The court rejected the trial court’s conclu- sion that an exception to Pennsylvania’s timeliness rule applied and reached “the inescapable conclusion that [Williams] is not entitled to relief.” at 105 A. 3d, at 1239–1241; see also at (Castille, J., concurring) (writing separately “to address the important responsibilities of the [state postconvic- tion] trial courts in serial capital [state postconviction] matters”). Finally, Williams filed an application for reargument. App. 9. The court denied the application without Castille’s participation. Castille had retired from the bench nearly two months before the court ruled. As this procedural history illustrates, the question presented is hardly what the majority makes it out to be. The majority incorrectly refers to the case before us and Williams’ criminal case (that ended in 1990) as a decades- long “single case” or “matter.” Ante, ; see also ante, at 7–9. The majority frames the issue as follows: whether —————— evidence of the victim’s prior sexual relationship with him. Williams V, 225–226, 229–230. Cite as: 579 U. S. (2016) 5 THOMAS, J., dissenting the Due Process Clause permits Castille to “ac[t] as both accuser and judge in [Williams’] case.” Ante, at 5. The majority answers: “When a judge has served as an advo- cate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome.” Ante, at 7 (empha- sis added). Accordingly, the majority holds that “[w]here a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level.” Ante, at 14 That is all wrong. There has been, however, no “single case” in which Castille acted as both prosecutor and adjudicator. Castille was still serving in the district attorney’s office when Williams’ criminal proceedings ended and his sentence of death became final. Williams’ filing of a petition for state postconviction relief did not continue (or resurrect) that already final criminal A postconviction pro- ceeding “is not part of the criminal proceeding itself ” but “is in fact considered to be civil in nature,” Pennsylvania v. (17), and brings with it fewer procedural protections. See, e.g., District Attorney’s |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | brings with it fewer procedural protections. See, e.g., District Attorney’s Office for Third Judicial Williams’ case therefore presents a much different question from that posited by the majority. It is more accurately characterized as whether a judge may review a petition for postconviction relief when that judge previ- ously served as district attorney while the petitioner’s criminal case was pending. For the reasons that follow, that different question merits a different answer. II The “settled usages and modes of proceeding existing in 6 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting the common and statute law of England before the emi- gration of our ancestors” are the touchstone of due process. ; see also Mur ray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856). What due process requires of the judicial proceedings in the Pennsylvania postconviction courts, therefore, is guided by the historical treatment of judicial disqualification. And here, neither historical practice nor this Court’s case law constitutionalizing that practice requires a former prosecutor to recuse from a prisoner’s postconviction proceedings. A At common law, a fair tribunal meant that “no man shall be a judge in his own case.” 1 E. Coke, Institutes of the Laws of England *141a (“[A]liquis non debet esse judex in propiâ causâ”). That common-law conception of a fair tribunal was a narrow one. A judge could not decide a case in which he had a direct and personal financial stake. For example, a judge could not reap the fine paid by a defendant. See, e.g., Dr. onham’s Case, 8 Co. Rep. 107a, 114a, 118a, 77 Eng. Rep. 638, 647, 652 (C. P. 1610) (opin- ing that a panel of adjudicators could not all at once serve as “judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfei- ture”). Nor could he adjudicate a case in which he was a party. See, e.g., Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K. 1614). ut mere bias—without any financial stake in a case—was not grounds for disqualifi- cation. The biases of judges “cannot be challenged,” ac- cording to lackstone, “[f ]or the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose author- ity greatly depends upon that presumption and idea.” 3 W. lackstone, Commentaries on the Laws of England, 361 (17) (lackstone); see also, e.g., rookes v. Earl of Riv Cite as: 579 U. S. (2016) 7 THOMAS, J., dissenting ers, Hardres 145 Eng. Rep. 569 (Exch. |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | THOMAS, J., dissenting ers, Hardres 145 Eng. Rep. 569 (Exch. 16) (deciding that a judge’s “favour shall not be presumed” merely because his brother-in-law was involved). The early American conception of judicial disqualifica- tion was in keeping with the “clear and simple” common- law rule—“a judge was disqualified for direct pecuniary interest and for nothing else.” Frank, Disqualification of Judges, 56 Yale L. J. 605, 609 (1947) (Frank); see also R. Flamm, Judicial Disqualification: Recusal and Disqualifi- cation of Judges p. 7 (2d ed. 2007). Most jurisdictions required judges to recuse when they stood to profit from their involvement or, more broadly, when their property was involved. See v. Julian, 45 N. H. 52, 55–56 ; see also, e.g., (deciding that a judge was unlawfully interested in a criminal case in which his slave was the defendant). ut the judge’s pecuniary interest had to be directly implicated in the case. See, e.g., 44 Tex. (1876) (deciding that a judge, who was the victim of a theft, was not disqualified in the prosecution of the theft); see also T. Cooley, Constitutional Limitations 594 (7th ed. 1903) (rejecting a financial stake “so remote, trifling, and insignificant that it may fairly be supposed to be incapable of affecting the judgment”); (“[A] credi- tor, lessee, or debtor, may be judge in the case of his debtor, landlord, or creditor, except in cases where the amount of the party’s property involved in the suit is so great that his ability to meet his engagements with the judge may depend upon the success of his suit”); Inhabitants of Read ington Twp. Hunterdon County v. Dilley, 24 N. J. L. 209, 212–213 (N. J. 1853) (deciding that a judge, who had previously been paid to survey the roadway at issue in the case, was not disqualified). Shortly after the founding, American notions of judicial disqualification expanded in important respects. Of par- ticular relevance here, the National and State Legisla- 8 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting tures enacted statutes and constitutional provisions that diverged from the common law by requiring disqualifica- tion when the judge had served as counsel for one of the parties. The first federal recusal statute, for example, required disqualification not only when the judge was “concerned in interest,” but also when he “ha[d] been of counsel for either party.” Act of May 8, 1792, 1 Stat. 278–279. Many States followed suit by enacting similar disqualification statutes or constitutional provisions ex- panding the common-law rule. See, e.g., (19); Fechheimer v. Washington, 3 (11) ; (10); Whipple v. Saginaw Circuit Court Judge, 26 Mich. 342, |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | (10); Whipple v. Saginaw Circuit Court Judge, 26 Mich. 342, 343 (1873); ; but see (de- ciding that it was for the judge to choose whether he could fairly adjudicate a case in which he had served as a lawyer for the plaintiff in the same action). Courts applied this expanded view of disqualification not only in cases involv- ing judges who had previously served as counsel for pri- vate parties but also for those who previously served as former attorneys general or district attorneys. See, e.g., 510–511 (Tex. Crim. App. 1893); at This expansion was modest: disqualification was re- quired only when the newly appointed judge had served as counsel in the same case. In for example, this Court rejected the argument that a judge was required to recuse because he had previously served as counsel for some of the defendants in another matter. at 497–4. The Court left it to the judge “to decide for himself whether it was improper for him to sit in trial of the suit.” at 4. Likewise, in Taylor v. Williams, the Supreme Court of Texas acknowledged that a judge was not, “by the common law, Cite as: 579 U. S. (2016) 9 THOMAS, J., dissenting disqualified from sitting in a cause in which he had been of counsel” and concluded “that the fact that the presiding judge had been of counsel in the case did not necessarily render him interested in it.” at 585–586. A fortiori, the Texas court held, a judge was not “interested” in a case “merely from his having been of counsel in another cause involving the same title.” ; see also The Richmond, (CCED La. 11) (“The decisions, so far as I have been able to find, are unanimous that ‘of counsel’ means ‘of counsel for a party in that cause and in that controversy,’ and if either the cause or controversy is not identical the disqualification does not exist”); (1894) (same); (15) (same). This limitation—that the same person must act as counsel and adjudicator in the same case—makes good sense. At least one of the State’s highest courts feared that any broader rule would wreak havoc: “If the circum- stance of the judge having been of counsel, for some par- ties in some case involving some of the issues which had been theretofore tried[,] disqualified him from acting in every case in which any of those parties, or those issues should be subsequently involved, the most eminent mem- bers of the bar, would, by reason of their extensive profes- sional relations and their large experience be rendered |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | extensive profes- sional relations and their large experience be rendered ineligible, or useless as judges.” (1). Indeed, any broader rule would be at odds with this Court’s historical practice. Past Justices have decided cases involving their former clients in the private sector or their former offices in the public sector. See Frank 622–625. The examples are legion; chief among them is in which then–Secretary of State John Marshall sealed but failed to deliver William Marbury’s commission and then, as newly appointed Chief Justice, Marshall decided 10 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting whether mandamus was an available remedy to require James Madison to finish the job. See Paulsen, Marbury’s Wrongness, 20 Constitutional Commentary 343, 350 (2003). Over the next century, this Court entered the fray of judicial disqualifications only a handful of times. Drawing from longstanding historical practice, the Court an- nounced that the Due Process Clause compels judges to disqualify in the narrow circumstances described below. ut time and again, the Court cautioned that “[a]ll ques- tions of judicial qualification may not involve constitu- tional validity.” 273 U.S., at And “matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legisla- tive discretion.” ; see also Aetna Life Co. v. Lavoie, (16) (“The Due Process Clause demarks only the outer boundaries of judicial disqualifications”). First, in the Court held that due process would not tolerate an adjudicator who would profit from the case if he convicted the defendant. The Court’s holding paral- leled the common-law rule: “[I]t certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reach- ing a conclusion against him in his case.” 273 U.S., at ; see also Ward v. Monroeville, 409 U.S. 57, 59, 61 (1972) (deciding that a mayor could not adjudi- cate traffic violations if revenue from convictions consti- tuted a substantial portion of the municipality’s revenue). Later, applying ’s rule in Aetna Life the Court held that a judge who decided a case involving an insur- ance company had a “direct, personal, substantial, and pecuniary” interest because he had brought a similar case against an insurer and his opinion for the court “had the Cite as: 579 U. S. (2016) 11 THOMAS, J., dissenting clear and immediate effect of enhancing both the legal status and the settlement value of his own case.” 475 U.S., 24 (alterations and internal quotation marks omitted). |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | case.” 475 U.S., 24 (alterations and internal quotation marks omitted). Second, in In re Murchison, the Court adopted a constitutional rule resembling the histori- cal practice for disqualification of former counsel. at 139. There, state law empowered a trial judge to sit as a “ ‘one man judge-grand jury,’ ” meaning that he could “compel witnesses to appear before him in secret to testify about suspected crimes.” During those secret proceedings, the trial judge suspected that one of the witnesses, Lee Roy Murchison, had committed perjury, and he charged another, John White, with contempt after he refused to answer the judge’s questions without counsel present. See at 134–135. The judge then tried both men in open court and convicted and sentenced them based, in part, on his interrogation of them in the secret proceedings. See 138–139. The defendants appealed, arguing that the “trial before the judge who was at the same time the complainant, indicter and prosecutor, constituted a denial of fair and impartial trial required by” due process. This Court agreed: “It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations.” roadly speak- ing, Murchison’s rule constitutionalizes the early Ameri- can statutes requiring disqualification when a single person acts as both counsel and judge in a single civil or criminal 3 —————— 3 The Court has applied Murchison in later cases involving contempt proceedings in which a litigant’s contemptuous conduct is so egregious that the judge “become[s] so ‘personally embroiled’ ” in the controversy that it is as if the judge is a party himself. ; see also 418 U.S. 4, 501– (1974). 12 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting oth and Murchison arguably reflect historical understandings of judicial disqualification. Traditionally, judges disqualified themselves when they had a direct and substantial pecuniary interest or when they served as counsel in the same case. Those same historical understandings of judicial dis- qualification resolve Williams’ case. Castille did not serve as both prosecutor and judge in the case before us. Even assuming Castille’s supervisory role as district attorney was tantamount to serving as “counsel” in Williams’ crim- inal case, that case ended nearly five years before Castille joined the Supreme Court of Pennsylvania. Castille then participated in a separate proceeding by reviewing Wil- liams’ petition for postconviction relief. As discussed above, see Part I–, this postconvic- tion proceeding is not an extension of Williams’ criminal case but is instead a new civil See 481 U.S., at Our case law |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | a new civil See 481 U.S., at Our case law bears out the many dis- tinctions between the two proceedings. In his criminal case, Williams was presumed innocent, and the Constitution guaranteed him counsel, Gideon v. Wainwright, 372 U.S. 335, 344–345 (1963); – 69 (1932), a public trial by a jury of his peers, Duncan v. Louisiana, (19), and empowered him to confront the witnesses against him, as well as all the other requirements of a criminal ut in postconvic- tion proceedings, “the presumption of innocence [has] disappear[ed].” (1993). The postconviction petitioner has no constitutional right to counsel. at 555–557; see also John 4 Nor has this Court ever held that he has a right to demand that his postcon- Cite as: 579 U. S. (2016) 13 THOMAS, J., dissenting viction court consider a freestanding claim of actual inno- cence, at 417–419, or to demand the State to turn over exculpatory evidence, 557 U.S., at –70; see also (plurality opinion) (cataloguing differences between direct and collateral review and concluding that “[t]hese differ- ences simply reflect the fact that habeas review entails significant costs” (internal quotation marks omitted)). And, under the Court’s precedents, his due process rights are “not parallel to a trial right, but rather must be ana- lyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief.” ecause Castille did not act as both counsel and judge in the same case, Castille’s participation in the postconvic- tion proceedings did not violate the Due Process Clause. Castille might have been “personal[ly] involve[d] in a critical trial decision,” ante, at 9, but that “trial” was Williams’ criminal trial, not the postconviction proceed- ings before us now. Perhaps Castille’s participation in Williams’ postconviction proceeding was unwise, but it was within the bounds of historical practice. That should end this case, for it “is not for Members of this Court to decide from time to time whether a process approved by the legal traditions of our people is ‘due’ process.” Pacific Mut. Life (Scalia, J., concurring in judgment). C Today’s holding departs both from common-law practice and this Court’s prior precedents by ignoring the critical distinction between criminal and postconviction proceed- ings. Chief Justice Castille had no “direct, personal, sub- stantial pecuniary interest” in the adjudication of Wil- liams’ fourth postconviction petition. 273 U.S., at And although the majority invokes Murchison, ante, 14 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting at 6–8, it wrongly relies on that decision too. In Murchi son, the judge acted as both the |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | too. In Murchi son, the judge acted as both the accuser and judge in the same 349 U.S., –139. ut here, Cas- tille did not. See Part II–, The perceived bias that the majority fears is instead outside the bounds of the historical expectations of judicial recusal. Perceived bias (without more) was not recognized as a constitutionally compelled ground for disqualification until the Court’s recent decision in 556 U.S. 8 In Caperton, the Court decided that due process demanded disqualification when “extreme facts” proved “the probability of actual bias.” 6–7. Caperton, of course, elicited more questions than answers. 93–8 (ROERTS, C. J., dissent- ing). And its conclusion that bias alone could be grounds for disqualification as a constitutional matter “represents a complete departure from common law principles.” Frank 618–619; see lackstone 361 (“[T]he law will not suppose a possibility of bias or favor in a judge”). The Court, therefore, should not so readily extend Caperton’s “probability of actual bias” rule to state post- conviction proceedings. This Court’s precedents demand far less “process” in postconviction proceedings than in a criminal prosecution. See ; see also Cafeteria & Restaurant 367 U.S. 6, 895 (1961) (concluding that the Due Process Clause does not demand “inflexible procedures universally applicable to every imaginable situation”). If a state habeas petitioner is not entitled to counsel as a constitutional matter in state postconviction proceedings, at 555– 557, it is not unreasonable to think that he is likewise not entitled to demand, as a constitutional matter, that a state postconviction court consider his case anew because a judge, who had no direct and substantial pecuniary inter- est and had not served as counsel in this case, failed to recuse himself. Cite as: 579 U. S. (2016) 15 THOMAS, J., dissenting The bias that the majority fears is a problem for the state legislature to resolve, not the Federal Constitution. See, e.g., Aetna Life 475 U.S., 21 (“We need not decide whether allegations of bias or prejudice by a judge of the type we have here would ever be sufficient under the Due Process Clause to force recusal”). And, indeed, it appears that Pennsylvania has set its own standard by requiring a judge to disqualify if he “served in governmen- tal employment, and in such capacity participated person- ally and substantially as a lawyer or public official con- cerning the proceeding” in its Code of Judicial Conduct. See Pa. Code of Judicial Conduct Rule 2.11(A)(6)(b) (West 2016). Officials in Pennsylvania are fully capable of decid- ing when their judges have “participated personally and substantially” in a manner that would |
Justice Thomas | 2,016 | 1 | second_dissenting | Williams v. Pennsylvania | https://www.courtlistener.com/opinion/3211607/williams-v-pennsylvania/ | have “participated personally and substantially” in a manner that would require disqualifi- cation without this Court’s intervention. Due process requires no more, especially in state postconviction review where the States “ha[ve] more flexibility in deciding what procedures are needed.” III Even if I were to assume that an error occurred in Wil- liams’ state postconviction proceedings, the question re- mains whether there is anything left for the Pennsylvania courts to remedy. There is not. The majority remands the case to “[a]llo[w] an appellate panel to reconsider a case without the participation of the interested member,” which it declares “will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first delibera- tions.” Ante, at 14. The majority neglects to mention that the Supreme Court of Pennsylvania might have done just that. It entertained Williams’ motion for reargument without Castille, who had retired months before the court denied the motion. The Supreme Court of Pennsylvania is free to decide on remand that it cured any alleged depriva- 16 WILLIAMS v. PENNSYLVANIA THOMAS, J., dissenting tion of due process in Williams’ postconviction proceeding by considering his motion for reargument without Cas- tille’s participation. * * * This is not a case about the “ ‘accused.’ ” Ante, at 14 (quoting ). It is a case about the due process rights of the already convicted. Whatever those rights might be, they do not include policing alleged viola- tions of state codes of judicial ethics in postconviction proceedings. The Due Process Clause does not require any and all conceivable procedural protections that Members of this Court think “Western liberal democratic govern- ment ought to guarantee to its citizens.” Monaghan, Our Perfect Constitution, 56 N. Y. U. L. Rev. 353, 358 (11) (emphasis deleted). I respectfully dissent. |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | The Constitution's Supremacy Clause provides that "all Treaties which shall be made under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." Art. VI, cl. 2. The Clause means that the "courts" must regard "a treaty as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." In the Avena case the International Court of Justice (ICJ) (interpreting and applying the Vienna Convention on Consular ) issued a judgment that requires the United States to reexamine certain criminal proceedings in the cases of 51 Mexican nationals. Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. 12 (Judgment of Mar. 31) (Avena). The question here is whether the ICJ's Avena judgment is enforceable now as a matter of domestic law, i.e., whether it "operates of itself without the aid" of any further legislation. *1376 The United States has signed and ratified a series of treaties obliging it to comply with ICJ judgments in cases in which it has given its consent to the exercise of the ICJ's adjudicatory authority. Specifically, the United States has agreed to submit, in this kind of case, to the ICJ's "compulsory jurisdiction" for purposes of "compulsory settlement." Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol or Protocol), Art. I, Apr. 2, 1963, [1970] 21 U.S.T. 325, 326 T.I.A.S. No. 6820 (capitalization altered). And it agreed that the ICJ's judgments would have "binding force between the parties and in respect of [a] particular case." United Nations Charter, Art. 59, T.S. No. 3 (195). President Bush has determined that domestic courts should enforce this particular ICJ judgment. Memorandum to the Attorney General App. to Pet. for Cert. 187a (hereinafter President's Memorandum). And Congress has done nothing to suggest the contrary. Under these circumstances, I believe the treaty obligations, and hence the judgment, resting as it does upon the consent of the United States to the ICJ's jurisdiction, bind the courts no less than would "an act of the [federal] legislature." at I To understand the issue before us, the reader must keep in mind three separate ratified United States treaties and one ICJ judgment against the United States. The first treaty, the Vienna Convention, contains two relevant provisions. The first requires the United States and other signatory nations to inform arrested foreign nationals of their separate Convention-given right to contact their nation's consul. The second says that these rights (of an arrested person) "shall be exercised in conformity with the laws |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | arrested person) "shall be exercised in conformity with the laws and regulations" of the arresting nation, provided that the "laws and regulations enable full effect to be given to the purposes for which" those "rights are intended." See Vienna Convention on Consular Arts. 36(1)(b), 36(2), Apr. 2, 1963, [1970] 21 U.S.T. 100-101, T.I.A.S. No. 6820 The second treaty, the Optional Protocol, concerns the "compulsory settlement" of Vienna Convention disputes. 21 U.S.T., at 326. It provides that for parties that elect to subscribe to the Protocol, "[d]isputes arising out of the interpretation or application of the [Vienna] Convention" shall be submitted to the "compulsory jurisdiction of the International Court of Justice." Art. I, It authorizes any party that has consented to the ICJ's jurisdiction (by signing the Optional Protocol) to bring another such party before that Court. The third treaty, the United Nations Charter, says that every signatory Nation "undertakes to comply with the decision of the International Court of Justice in any case to which it is a party." Art. 9(1), In an annex to the Charter, the Statute of the International Court of Justice states that an ICJ judgment has "binding force between the parties and in respect of that particular case." Art. 59, See also Art. 60, The judgment at issue is the ICJ's judgment in Avena, a case that Mexico brought against the United States on behalf of 52 nationals arrested in different States on different criminal charges. I.C.J., at 39. Mexico claimed that state authorities within the United States had failed to notify the arrested persons of their Vienna Convention rights and, by applying state procedural law in a manner which did not *1377 give full effect to the Vienna Convention rights, had deprived them of an appropriate remedy. The ICJ judgment in Avena requires that the United States reexamine "by means of its own choosing" certain aspects of the relevant state criminal proceedings of 51 of these individual Mexican nationals. The President has determined that this should be done. See President's Memorandum. The critical question here is whether the Supremacy Clause requires Texas to follow, i.e., to enforce, this ICJ judgment. The Court says "no." And it reaches its negative answer by interpreting the labyrinth of treaty provisions as creating a legal obligation that binds the United States internationally, but which, for Supremacy Clause purposes, is not automatically enforceable as domestic law. In the majority's view, the Optional Protocol simply sends the dispute to the ICJ; the ICJ statute says that the ICJ will subsequently reach a judgment; and the U.N. Charter contains no more |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | reach a judgment; and the U.N. Charter contains no more than a promise to " `undertak[e] to comply' " with that judgment. Ante, Such a promise, the majority says, does not as a domestic law matter (in Chief Justice Marshall's words) "operat[e] of itself without the aid of any legislative provision." 2 Pet., at Rather, here (and presumably in any other ICJ judgment rendered pursuant to any of the approximately 70 U.S. treaties in force that contain similar provisions for submitting treaty-based disputes to the ICJ for decisions that bind the parties) Congress must enact specific legislation before ICJ judgments entered pursuant to our consent to compulsory ICJ jurisdiction can become domestic law. See Brief for International Court of Justice Experts as Amici Curiae 18 ("Approximately 70 U.S. treaties now in force contain obligations comparable to those in the Optional Protocol for submission of treaty-based disputes to the ICJ"); see also In my view, the President has correctly determined that Congress need not enact additional legislation. The majority places too much weight upon treaty language that says little about the matter. The words "undertak[e] to comply," for example, do not tell us whether an ICJ judgment rendered pursuant to the parties' consent to compulsory ICJ jurisdiction does, or does not, automatically become part of our domestic law. To answer that question we must look instead to our own domestic law, in particular, to the many treaty-related cases interpreting the Supremacy Clause. Those cases, including some written by Justices well aware of the Founders' original intent, lead to the conclusion that the ICJ judgment before us is enforceable as a matter of domestic law without further legislation. A Supreme Court case law stretching back more than 200 years helps explain what, for present purposes, the Founders meant when they wrote that "all Treaties shall be the supreme Law of the Land." Art. VI, cl. 2. In for example, the Court decided the case of A British creditor sought payment of an American's Revolutionary War debt. The debtor argued that he had, under Virginia law, repaid the debt by complying with a state statute enacted during the Revolutionary War that required debtors to repay money owed to British creditors into a Virginia state fund. The creditor, however, claimed that this state-sanctioned repayment did not count because a provision of the 17 Paris Peace Treaty between Britain and the United States that " `the creditors of either side should meet with no lawful impediment to the recovery of the full value of all bona fide debts, theretofore *1378 contracted'"; and that provision, the |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | bona fide debts, theretofore *1378 contracted'"; and that provision, the creditor argued, effectively nullified the state law. The Court, with each Justice writing separately, agreed with the British creditor, held the Virginia statute invalid, and found that the American debtor remained liable for the debt. The key fact relevant here is that Congress had not enacted a specific statute enforcing the treaty provision at issue. Hence the Court had to decide whether the provision was (to put the matter in present terms) "self-executing." Justice Iredell, a member of North Carolina's Ratifying Convention, addressed the matter specifically, setting forth views on which Justice later relied to explain the Founders' reasons for drafting the Supremacy Clause. 3 J. Commentaries on the Constitution of the United States 696-697 (hereinafter ). See Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int'l L. 695, 697-700 (15) (hereinafter Vázquez) (describing the history and purpose of the Supremacy Clause). See also Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land", Colum. L.Rev.2095 (contending that the Founders crafted the Supremacy Clause to make ratified treaties self-executing). But see Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, Colum. L.Rev.1955 Justice Iredell pointed out that some Treaty provisions, those, for example, declaring the United States an independent Nation or acknowledging its right to navigate the Mississippi River, were "executed," taking effect automatically upon Other provisions were "executory," in the sense that they were "to be carried into execution" by each signatory nation "in the manner which the Constitution of that nation prescribes." Before adoption of the U.S. Constitution, all such provisions would have taken effect as domestic law only if Congress on the American side, or Parliament on the British side, had written them into domestic law. But, Justice Iredell adds, after the Constitution's adoption, while further parliamentary action remained necessary in Britain (where the "practice" of the need for an "act of parliament" in respect to "any thing of a legislative nature" had "been constantly observed," ), further legislative action in respect to the treaty's debt-collection provision was no longer necessary in the United States. The ratification of the Constitution with its Supremacy Clause means that treaty provisions that bind the United States may (and in this instance did) also enter domestic law without further congressional action and automatically bind the States and courts as well. "Under this Constitution," Justice Iredell concluded, "so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also by the vigour of its own authority to be executed |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | by the vigour of its own authority to be executed in fact. It would not otherwise be the Supreme law in the new sense provided for." ; see also at 697 (noting that the Supremacy Clause's language was crafted to make the Clause's "obligation more strongly felt by the state judges" and to "remov[e] every pretense" by which they could "escape from [its] controlling power"); see also The Federalist No. 2, p. 26 (J. Madison) (Supremacy Clause "disembarrassed" the Convention of the problem presented by the Articles of Confederation where "treaties might be substantially frustrated by regulations of the States"). *1379 Justice Iredell gave examples of provisions that would no longer require further legislative action, such as those requiring the release of prisoners, those forbidding warrelated "future confiscations" and " `prosecutions,' " and, of course, the specific debt-collection provision at issue in the case 277. Some 30 years later, the Court returned to the "self-execution" problem. In the Court examined a provision in an treaty with Spain ceding Florida to the United States; the provision that " `grants of land made' " by Spain before January 2, 1818, " `shall be ratified and confirmed' " to the grantee. Chief Justice Marshall, writing for the Court, noted that, as a general matter, one might expect a signatory nation to execute a treaty through a formal exercise of its domestic sovereign authority (e.g., through an act of the legislature). at But in the United States "a different principle" applies. The Supremacy Clause means that, here, a treaty is "the law of the land. to be regarded in Courts of justice as equivalent to an act of the legislature" and "operates of itself without the aid of any legislative provision" unless it specifically contemplates execution by the legislature and thereby "addresses itself to the political, not the judicial department." The Court decided that the treaty provision in question was not self-executing; in its view, the words "shall be ratified" demonstrated that the provision foresaw further legislative action. The Court, however, changed its mind about the result in four years later, after being shown a less legislatively oriented, less tentative, but equally authentic Spanish-language version of the treaty. See United And by instances in which treaty provisions automatically became part of domestic law were common enough for one Justice to write that "it would be a bold proposition" to assert "that an act of Congress must be first passed" in order to give a treaty effect as "a supreme law of the land." Lessee of Pollard's Since and Pollard, this Court has frequently held |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | of Pollard's Since and Pollard, this Court has frequently held or assumed that particular treaty provisions are self-executing, automatically binding the States without more. See Appendix A, infra (listing, as examples, 29 such cases, including 12 concluding that the treaty provision invalidates state or territorial law or policy as a consequence). See also Wu, Treaties' Domains, 93 Va. L.Rev. 571, 5-58 (concluding "enforcement against States is the primary and historically most significant type of treaty enforcement in the United States"). As far as I can tell, the Court has held to the contrary only in two cases: which was later reversed, and Cameron Septic Tank where specific congressional actions indicated that Congress thought further legislation necessary. See also Vázquez 716. The Court has found "self-executing" provisions in multilateral treaties as well as bilateral treaties. See, e.g., Trans World ; Corp. of And the subject matter of such provisions has varied widely, from extradition, see, e.g., United to criminal trial jurisdiction, see Wildenhus's to civil liability, see, e.g., El Al *1380 Israel to trademark infringement, see at and n. 9, 161, to immunity from state taxation, see to land ownership, at and to inheritance, see, e.g., Of particular relevance to the present case, the Court has held that the United States may be obligated by treaty to comply with the judgment of an international tribunal interpreting that treaty, despite the absence of any congressional enactment specifically requiring such compliance. See ; see also All of these cases make clear that self-executing treaty provisions are not uncommon or peculiar creatures of our domestic law; that they cover a wide range of subjects; that the Supremacy Clause itself answers the self-execution question by applying many, but not all, treaty provisions directly to the States; and that the Clause answers the self-execution question differently than does the law in many other nations. See The cases also provide criteria that help determine which provisions automatically so applya matter to which I now turn. B 1 The case law provides no simple magic answer to the question whether a particular treaty provision is self-executing. But the case law does make clear that, insofar as today's majority looks for language about "self-execution" in the treaty itself and insofar as it erects "clear statement" presumptions designed to help find an answer, it is misguided. See, e.g., ante, at 1363-136 (expecting "clea[r] state[ment]" of parties' intent where treaty obligation "may interfere with state procedural rules"); ante, at 1368 (for treaty to be self-executing, Executive should at drafting "ensur[e] that it contains language plainly providing for domestic enforceability"). The many |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | it contains language plainly providing for domestic enforceability"). The many treaty provisions that this Court has found self-executing contain no textual language on the point (see Appendix A, infra). Few, if any, of these provisions are clear. See, e.g., Those that displace state law in respect to such quintessential state matters as, say, property, inheritance, or debt repayment, lack the "clea[r] state[ment]" that the Court today apparently requires. Compare ante, at 1363-136 (majority expects "clea[r] state[ment]" of parties' intent where treaty obligation "may interfere with state procedural rules"). This is also true of those cases that deal with state rules roughly comparable to the sort that the majority suggests require special accommodation. See, e.g., Cf. ante, at 1363-136 (setting forth majority's reliance on case law that is apparently inapposite). These many Supreme *1381 Court cases finding treaty provisions to be self-executing cannot be reconciled with the majority's demand for textual clarity. Indeed, the majority does not point to a single ratified United States treaty that contains the kind of "clea[r]" or "plai[n]" textual indication for which the majority searches. Ante, at 1363, 1368. Justice STEVENS' reliance upon one ratified and one un-ratified treaty to make the point that a treaty could speak clearly on the matter of self-execution, see ante, at 1373 and n. 1, does suggest that there are a few such treaties. But that simply highlights how few of them actually do speak clearly on the matter. And that is not because the United States never, or hardly ever, has entered into a treaty with self-executing provisions. The case law belies any such conclusion. Rather, it is because the issue whether further legislative action is required before a treaty provision takes domestic effect in a signatory nation is often a matter of how that Nation's domestic law regards the provision's legal status. And that domestic status-determining law differs markedly from one nation to another. See generally Hollis, Comparative Approach to Treaty Law and in National Treaty Law and 1, 9-50 (hereinafter Hollis). As Justice Iredell pointed out 200 years ago, Britain, for example, taking the view that the British Crown makes treaties but Parliament makes domestic law, virtually always requires parliamentary legislation. See ; Sinclair, Dickson, & Maciver, United Kingdom, in National Treaty Law and and n. 9 (citing Queen v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Lord Rees-Mogg, [1] Q.B. 552 (13) (in Britain, "`treaties are not self-executing'")). See also Torruella, The Insular s: The Establishment of a Regime of Political Apartheid, On the other hand, the United States, with its Supremacy Clause, |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | the other hand, the United States, with its Supremacy Clause, does not take Britain's view. See, e.g., And the law of other nations, the Netherlands for example, directly incorporates many treaties concluded by the executive into its domestic law even without explicit parliamentary approval of the treaty. See Brouwer, The Netherlands, in National Treaty Law and The majority correctly notes that the treaties do not explicitly state that the relevant obligations are self-executing. But given the differences among nations, why would drafters write treaty language stating that a provision about, say, alien property inheritance, is self-executing? How could those drafters achieve agreement when one signatory nation follows one tradition and a second follows another? Why would such a difference matter sufficiently for drafters to try to secure language that would prevent, for example, Britain's following treaty ratification with a further law while (perhaps unnecessarily) insisting that the United States apply a treaty provision without further domestic legislation? Above all, what does the absence of specific language about "self-execution" prove? It may reflect the drafters' awareness of national differences. It may reflect the practical fact that drafters, favoring speedy, effective implementation, conclude they should best leave national legal practices alone. It may reflect the fact that achieving international agreement on this point is simply a game not worth the candle. In a word, for present purposes, the absence or presence of language in a treaty about a provision's self-execution proves nothing at all. At best the Court is hunting the snark. At worst it erects legalistic hurdles that can threaten the application *1382 of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones. (For examples, see Appendix B, infra.) 2 The case law also suggests practical, context-specific criteria that this Court has previously used to help determine whether, for Supremacy Clause purposes, a treaty provision is self-executing. The provision's text matters very much. Cf. ante, at 1361-1362. But that is not because it contains language that explicitly refers to self-execution. For reasons I have already explained, Part I-B-1, one should not expect that kind of textual statement. Drafting history is also relevant. But, again, that is not because it will explicitly address the relevant question. Instead text and history, along with subject matter and related characteristics will help our courts determine whether, as Chief Justice Marshall put it, the treaty provision "addresses itself to the political department[s]" for further action or to "the judicial department" for direct enforcement. 2 Pet., at ; see also ("No one can doubt that a treaty may stipulate, |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | also ("No one can doubt that a treaty may stipulate, that certain acts shall be done by the Legislature; that other acts shall be done by the Executive; and others by the Judiciary"). In making this determination, this Court has found the provision's subject matter of particular importance. Does the treaty provision declare peace? Does it promise not to engage in hostilities? If so, it addresses itself to the political branches. See Alternatively, does it concern the adjudication of traditional private legal rights such as rights to own property, to conduct a business, or to obtain civil tort recovery? If so, it may well address itself to the Judiciary. Enforcing such rights and setting their boundaries is the bread-and-butter work of the courts. See, e.g., ; One might also ask whether the treaty provision confers specific, detailed individual legal rights. Does it set forth definite standards that judges can readily enforce? Other things being equal, where rights are specific and readily enforceable, the treaty provision more likely "addresses" the judiciary. See, e.g., Olympic ; Compare at -315 Alternatively, would direct enforcement require the courts to create a new cause of action? Would such enforcement engender constitutional controversy? Would it create constitutionally undesirable conflict with the other branches? In such circumstances, it is not likely that the provision contemplates direct judicial enforcement. See, e.g., (although "not limited by any express provision of the Constitution," the treaty-making power of the United States "does not extend `so far as to authorize what the Constitution forbids' "). Such questions, drawn from case law stretching back 200 years, do not create a simple test, let alone a magic formula. But they do help to constitute a practical, context-specific judicial approach, seeking to separate run-of-the-mill judicial matters from other matters, sometimes more politically *13 charged, sometimes more clearly the responsibility of other branches, sometimes lacking those attributes that would permit courts to act on their own without more ado. And such an approach is all that we need to find an answer to the legal question now before us. C Applying the approach just described, I would find the relevant treaty provisions self-executing as applied to the ICJ judgment before us (giving that judgment domestic legal effect) for the following reasons, taken together. First, the language of the relevant treaties strongly supports direct judicial enforceability, at least of judgments of the kind at issue here. The Optional Protocol bears the title "Compulsory Settlement of Disputes," thereby emphasizing the mandatory and binding nature of the procedures it sets forth. 21 U.S.T., at 326. The body of the |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | sets forth. 21 U.S.T., at 326. The body of the Protocol says specifically that "any party" that has consented to the ICJ's "compulsory jurisdiction" may bring a "dispute" before the court against any other such party. Art. I, And the Protocol contrasts proceedings of the compulsory kind with an alternative "conciliation procedure," the recommendations of which a party may decide "not" to "accep[t]." Art. I, Thus, the Optional Protocol's basic objective is not just to provide a forum for settlement but to provide a forum for compulsory settlement. Moreover, in accepting Article 9(1) of the Charter, "[e]ach Member undertakes to comply with the decision" of the ICJ "in any case to which it is a party." And the ICJ Statute (part of the U.N. Charter) makes clear that, a decision of the ICJ between parties that have consented to the ICJ's compulsory jurisdiction has "binding force between the parties and in respect of that particular case." Art. 59, Enforcement of a court's judgment that has "binding force" involves quintessential judicial activity. True, neither the Protocol nor the Charter explicitly states that the obligation to comply with an ICJ judgment automatically binds a party as a matter of domestic law without further domestic legislation. But how could the language of those documents do otherwise? The treaties are multilateral. And, as I have explained, some signatories follow British further-legislation-always-needed principles, others follow United States Supremacy Clause principles, and still others, e.g., the Netherlands, can directly incorporate treaty provisions into their domestic law in particular circumstances. See Hollis 9-50. Why, given national differences, would drafters, seeking as strong a legal obligation as is practically attainable, use treaty language that requires all signatories to adopt uniform domestic-law treatment in this respect? The absence of that likely unobtainable language can make no difference. We are considering the language for purposes of applying the Supremacy Clause. And for that purpose, this Court has found to be self-executing multilateral treaty language that is far less direct or forceful (on the relevant point) than the language set forth in the present treaties. See, e.g., Trans World ; 311 U.S., at and n. 9, 161, The language here in effect tells signatory nations to make an ICJ compulsory jurisdiction judgment "as binding as you can." Thus, assuming other factors favor self-execution, the language adds, rather than subtracts, support. Indeed, as I have the United States has ratified approximately *138 70 treaties with ICJ dispute resolution provisions roughly similar to those contained in the Optional Protocol; many of those treaties contemplate ICJ adjudication of the sort of substantive matters (property, |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | contemplate ICJ adjudication of the sort of substantive matters (property, commercial dealings, and the like) that the Court has found self-executing, or otherwise appear addressed to the judicial branch. See Appendix B, infra. None of the ICJ provisions in these treaties contains stronger language about self-execution than the language at issue here. See, e.g., Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of Denmark, Art. XXIV(2), Oct. 1, 1951, [] 12 U.S.T. 935, T.I.A.S. No. 797 ("Any dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means"). In signing these treaties (in respect to, say, alien land ownership provisions) was the United States engaging in a near useless act? Does the majority believe the drafters expected Congress to enact further legislation about, say, an alien's inheritance rights, decision by decision? I recognize, as the majority emphasizes, that the U.N. Charter uses the words "undertakes to comply," rather than, say, "shall comply" or "must comply." But what is inadequate about the word "undertak[e]"? A leading contemporary dictionary defined it in terms of "lay[ing] oneself under obligation to perform or to execute." Webster's New International Dictionary 2770 (2d ed.1939). And that definition is just what the equally authoritative Spanish version of the provision (familiar to Mexico) says directly: The words "compromete a cumplir" indicate a present obligation to execute, without any tentativeness of the sort the majority finds in the English word "undertakes." See Carta de las Naciones Unidas, Articulo 9, (195); Spanish and English Legal and Commercial Dictionary (195) (defining "comprometer" as "become liable"); ; see also Art. 111, ; 7 Pet., at Compare And even if I agreed with Justice STEVENS that the language is perfectly ambiguous (which I do not), I could not agree that "the best reading is one that contemplates future action by the political branches." Ante, at 1373. The consequence of such a reading is to place the fate of an international promise made by the United States in the hands of a single State. See ante, at 137-1375. And that is precisely the situation that the Framers sought to prevent by enacting the Supremacy Clause. See 3 696 (purpose of Supremacy Clause "was probably to obviate" the "difficulty" of system where treaties were "dependent upon the good will of the states for their execution"); see also 3 Dall., -278 I also recognize, as the majority emphasizes (ante, at 1359-1360), |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | I also recognize, as the majority emphasizes (ante, at 1359-1360), that the U.N. Charter says that "[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the [ICJ], the other party may have recourse to the Security Council." Art. 9(2), And when the Senate ratified *1385 the charter, it took comfort in the fact that the United States has a veto in the Security Council. See 92 Cong. Rec. 1069-10695 (196) (statements of Sens. Pepper and Connally). But what has that to do with the matter? To begin with, the Senate would have been contemplating politically significant ICJ decisions, not, e.g., the bread-and-butter commercial and other matters that are the typical subjects of self-executing treaty provisions. And in any event, both the Senate debate and U.N. Charter provision discuss and describe what happens (or does not happen) when a nation decides not to carry out an ICJ decision. See Charter of the United Nations for the Maintenance of International Peace and Security: Hearing before the Senate Committee on Foreign 79th Cong., 1st Sess., 286 (195) (statement of Leo Pasvolsky, Special Assistant to the Secretary of State for International Organization and Security Affairs) ("[W]hen the Court has rendered a judgment and one of the parties refuses to accept it, then the dispute becomes political rather than legal"). The debates refer to remedies for a breach of our promise to carry out an ICJ decision. The Senate understood, for example, that Congress (unlike legislatures in other nations that do not permit domestic legislation to trump treaty obligations, Hollis 7-9) can block through legislation self-executing, as well as non-self-executing determinations. The debates nowhere refer to the method we use for affirmatively carrying out an ICJ obligation that no political branch has decided to dishonor, still less to a decision that the President (without congressional dissent) seeks to enforce. For that reason, these aspects of the ratification debates are here beside the point. See infra, at 1387-1. The upshot is that treaty language says that an ICJ decision is legally binding, but it leaves the implementation of that binding legal obligation to the domestic law of each signatory nation. In this Nation, the Supremacy Clause, as long and consistently interpreted, indicates that ICJ decisions rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes. And for purposes of this argument, that conclusion is all that I need. The remainder of the discussion will explain why, if ICJ judgments sometimes bind domestic courts, then they have |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | if ICJ judgments sometimes bind domestic courts, then they have that effect here. Second, the Optional Protocol here applies to a dispute about the meaning of a Vienna Convention provision that is itself self-executing and judicially enforceable. The Convention provision is about an individual's "rights," namely, his right upon being arrested to be informed of his separate right to contact his nation's consul. See Art. 36(1)(b), 21 U.S.T., at 101. The provision language is precise. The dispute arises at the intersection of an individual right with ordinary rules of criminal procedure; it consequently concerns the kind of matter with which judges are familiar. The provisions contain judicially enforceable standards. See Art. 36(2), And the judgment itself requires a further hearing of a sort that is typically judicial. See infra, at 1-1389. This Court has found similar treaty provisions self-executing. See, e.g., -11, 29-30, (violation of extradition treaty could be raised as defense in criminal trial); ; Wildenhus's 120 U.S., at (treaty defined scope of state jurisdiction in a criminal case). It is consequently not surprising that, when Congress ratified the Convention, the State Department reported that the "Convention is considered entirely self-executive and does not require any implementing or complementing legislation." S. Exec. Rep. No. 91-9, p. 5 (1969); see also ("To the extent that there are conflicts with Federal legislation or State laws the Vienna Convention, after ratification, would govern"). And the Executive Branch has in this Court that other, indistinguishable Vienna Convention provisions are self-executing. See Brief for United States as Amicus Curiae in O.T. Nos. 05-51 and 0-10566, p. 1, n. 2; cf. ante, at 1357, n. (majority leaves question open). Third, logic suggests that a treaty provision providing for "final" and "binding" judgments that "settl[e]" treaty-based disputes is self-executing insofar as the judgment in question concerns the meaning of an underlying treaty provision that is itself self-executing. Imagine that two parties to a contract agree to binding arbitration about whether a contract provision's word "grain" includes rye. They would expect that, if the arbitrator decides that the word "grain" does include rye, the arbitrator will then simply read the relevant provision as if it "grain including rye." They would also expect the arbitrator to issue a binding award that embodies whatever relief would be appropriate under that circumstance. Why treat differently the parties' agreement to binding ICJ determination about, e.g., the proper interpretation of the Vienna Convention clauses containing the rights here at issue? Why not simply read the relevant Vienna Convention provisions as if (between the parties and in respect to the 51 individuals at |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | the parties and in respect to the 51 individuals at issue) they contain words that encapsulate the ICJ's decision? See Art. 59, Why would the ICJ judgment not bind in precisely the same way those words would bind if they appeared in the relevant Vienna Convention provisionsjust as the ICJ says, for purposes of this case, that they do? To put the same point differently: What sense would it make (1) to make a self-executing promise and (2) to promise to accept as final an ICJ judgment interpreting that self-executing promise, yet (3) to insist that the judgment itself is not self-executing (i.e., that Congress must enact specific legislation to enforce it)? I am not aware of any satisfactory answer to these questions. It is no answer to point to the fact that in this Court interpreted the relevant Convention provisions differently from the ICJ in Avena. This Court's interpretation binds our courts with respect to individuals whose rights were not espoused by a state party in Avena. Moreover, as the Court itself recognizes, see ante, at 1-1353, and as the President recognizes, see President's Memorandum, the question here is the very different question of applying the ICJ's Avena judgment to the very parties whose interests Mexico and the United States espoused in the ICJ Avena proceeding. It is in respect to these individuals that the United States has promised the ICJ decision will have binding force. Art. 59, See 1 Restatement (Second) of Conflict of Laws 98 (1969); 2 Restatement (Third) of Foreign 81 (1986); 1 Restatement (Second) of Judgments 17 *1387 (1980) (all calling for recognition of judgment rendered after fair hearing in a contested proceeding before a court with adjudicatory authority over the case). See also 1 Restatement (Second) of Conflict of Laws 106 ("A judgment will be recognized and enforced in other states even though an error of fact or law was made in the proceedings before judgment"); 106, Comment a ("Th[is] rule is applicable to judgments rendered in foreign nations"); Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum. L.Rev. 7, 789 (1950) ("[Foreign] judgments will not be denied effect merely because the original court made an error either of fact or of law"). Contrary to the majority's suggestion, see ante, at 1360-1361, that binding force does not disappear by virtue of the fact that Mexico, rather than Medellín himself, presented his claims to the ICJ. Mexico brought the Avena case in part in "the exercise of its right of diplomatic protection of its nationals," e.g., I.C. J., at 21, ¶¶ 13(1), |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | of its nationals," e.g., I.C. J., at 21, ¶¶ 13(1), (3), including Medellín, see Such derivative claims are a well-established feature of international law, and the United States has several times asserted them on behalf of its own citizens. See 2 Restatement (Third) of Foreign 713, Comments a, b, at 217; Concerning Elettronic Sicula S. p. A. (U.S. v. Italy), 1989 I.C.J. 15, 20 (Judgment of July 20); Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 I.C.J. 7, 8 (Judgment of Dec. 15); Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. U.S.), I.C.J. 176, 180-181 (Judgment of Aug. 27). They are treated in relevant respects as the claims of the represented individuals themselves. See 2 Restatement (Third) of Foreign 713, Comments a, b. In particular, they can give rise to remedies, tailored to the individual, that bind the Nation against whom the claims are brought (here, the United States). See ; see also, e.g., Nor does recognition of the ICJ judgment as binding with respect to the individuals whose claims were espoused by Mexico in any way derogate from the Court's holding in See ante, at 1361, n. 8. This case does not implicate the general interpretive question answered in : whether the Vienna Convention displaces state procedural rules. We are instead confronted with the discrete question of Texas' obligation to comply with a binding judgment issued by a tribunal with undisputed jurisdiction to adjudicate the rights of the individuals named therein. "It is inherent in international adjudication that an international tribunal may reject one country's legal position in favor of another'sand the United States explicitly accepted this possibility when it ratified the Optional Protocol." Brief for United States as Amicus Curiae 22. Fourth, the majority's very different approach has seriously negative practical implications. The United States has entered into at least 70 treaties that contain provisions for ICJ dispute settlement similar to the Protocol before us. Many of these treaties contain provisions similar to those this Court has previously found self-executing provisions that involve, for example, property rights, contract and commercial rights, trademarks, civil liability for personal injury, rights of foreign diplomats, taxation, domestic-court jurisdiction, and so forth. Compare Appendix A, infra, with Appendix B, infra. If the Optional Protocol here, taken together with the U.N. Charter and its annexed ICJ Statute, is insufficient to warrant enforcement of the ICJ judgment before us, it is difficult *1 to see how one could reach a different conclusion in any of these other instances. And the consequence is to undermine |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | of these other instances. And the consequence is to undermine longstanding efforts in those treaties to create an effective international system for interpreting and applying many, often commercial, self-executing treaty provisions. I thus doubt that the majority is right when it says, "We do not suggest that treaties can never afford binding domestic effect to international tribunal judgments." Ante, In respect to the 70 treaties that currently refer disputes to the ICJ's binding adjudicatory authority, some multilateral, some bilateral, that is just what the majority has done. Nor can the majority look to congressional legislation for a quick fix. Congress is unlikely to authorize automatic judicial enforceability of all ICJ judgments, for that could include some politically sensitive judgments and others better suited for enforcement by other branches: for example, those touching upon military hostilities, naval activity, handling of nuclear material, and so forth. Nor is Congress likely to have the time available, let alone the will, to legislate judgment-by-judgment enforcement of, say, the ICJ's (or other international tribunals') resolution of non-politically-sensitive commercial disputes. And as this Court's prior case law has avoided laying down bright-line rules but instead has adopted a more complex approach, it seems unlikely that Congress will find it easy to develop legislative bright lines that pick out those provisions (addressed to the Judicial Branch) where self-execution seems warranted. But, of course, it is not necessary for Congress to do soat least not if one believes that this Court's Supremacy Clause cases already embody criteria likely to work reasonably well. It is those criteria that I would apply here. Fifth, other factors, related to the particular judgment here at issue, make that judgment well suited to direct judicial enforcement. The specific issue before the ICJ concerned " `review and reconsideration' " of the "possible prejudice" caused in each of the 51 affected cases by an arresting State's failure to provide the defendant with rights guaranteed by the Vienna Convention. Avena, I.C. J., at 65, ¶ 138. This review will call for an understanding of how criminal procedure works, including whether, and how, a notification failure may work prejudice. As the ICJ itself recognized, "it is the judicial process that is suited to this task." Courts frequently work with criminal procedure and related prejudice. Legislatures do not. Judicial standards are readily available for working in this technical area. Legislative standards are not readily available. Judges typically determine such matters, deciding, for example, whether further hearings are necessary, after reviewing a record in an individual case. Congress does not normally legislate in respect to individual cases. Indeed, to |
Justice Breyer | 2,008 | 2 | dissenting | Medellin v. Texas | https://www.courtlistener.com/opinion/145822/medellin-v-texas/ | not normally legislate in respect to individual cases. Indeed, to repeat what I above, what kind of special legislation does the majority believe Congress ought to consider? Sixth, to find the United States' treaty obligations self-executing as applied to the ICJ judgment (and consequently to find that judgment enforceable) does not threaten constitutional conflict with other branches; it does not require us to engage in nonjudicial activity; and it does not require us to create a new cause of action. The only question before us concerns the application of the ICJ judgment as binding law applicable to the parties in a particular criminal proceeding that Texas law creates independently of the treaty. I repeat that the question before us does not involve the creation of a private right of action (and the majority's reliance on authority regarding *1389 such a circumstance is misplaced, see ante, at 1357, n. 3). Seventh, neither the President nor Congress has expressed concern about direct judicial enforcement of the ICJ decision. To the contrary, the President favors enforcement of this judgment. Thus, insofar as foreign policy impact, the interrelation of treaty provisions, or any other matter within the President's special treaty, military, and foreign affairs responsibilities might prove relevant, such factors favor, rather than militate against, enforcement of the judgment before us. See, e.g., L. Ed. 2d 708 For these seven reasons, I would find that the United States' treaty obligation to comply with the ICJ judgment in Avena is enforceable in court in this case without further congressional action beyond Senate ratification of the relevant treaties. The majority reaches a different conclusion because it looks for the wrong thing (explicit textual expression about self-execution) using the wrong standard (clarity) in the wrong place (the treaty language). Hunting for what the text cannot contain, it takes a wrong turn. It threatens to deprive individuals, including businesses, property owners, testamentary beneficiaries, consular officials, and others, of the workable dispute resolution procedures that many treaties, including commercially oriented treaties, provide. In a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction. Were the Court for a moment to shift the direction of its legal gaze, looking instead to the Supremacy Clause and to the extensive case law interpreting that Clause as applied to treaties, I believe it would reach a better supported, more felicitous conclusion. That approach, well embedded in Court case law, leads to the conclusion that the ICJ judgment before us is judicially enforceable without further legislative action. A determination that the ICJ judgment is |
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