author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
Amici Curiae 26 (footnote omitted). The facts of this case illustrate how easily a reluctant parent can evade a child support obligation. Congress recognized the serious problem of enforcement of child support orders when it enacted the Child Support Enforcement Amendments of 1984, Stat. 1305. S. Rep. No. 98-387, pp. 5-6 (1984); H. R. Rep. No. 98-527, pp. 30, 49 The California Legislature responded to the problem by enacting the presumption described in 1209.5. Now, says petitioner, the California Court of Appeal has sabotaged the California Legislature's effort. Contempt proceedings often will be useless if the parent seeking enforcement of valid support orders must prove that the obligor can comply with the court The custodial parent will typically lack access to the financial and employment records needed to sustain the burden imposed by the decision below, especially where the noncustodial parent is self-employed, as is the case here. Serious consequences follow from the California Court of Appeal's decision to invalidate California's statutory presumption that a parent continues *645 to be able to pay the child support previously determined to be within his or her means. Petitioner asks us to determine as a matter of California law that inability to comply with a support order is an affirmative defense to a contempt charge, so that the burden of persuasion may be placed on the contemnor under Petitioner also contends that the Court of Appeal erred in supposing that 1209.5 shifts the burden of persuasion rather than merely the burden of production, citing ; ; 4A J. Goddard, California Practice: Family Law Practice 686 (3d ed. 1981); 14 Cal. Jur. 3d, Contempt 32, 71 (1974); and 6 B. Witkin, Summary of California Law, Parent and Child 137 (8th ed. 1974). But the interpretation of California law is the province of California courts. I agree with the majority that, for purposes of this decision, we should assume that the California Court of Appeal correctly determined these matters of state law. United Gas Public Service If the Court of Appeal was in error, the California courts may correct it in future cases. The linchpin of the Court of Appeal's opinion is its determination that the contempt proceeding against respondent was criminal in nature. The court applied what it understood are the federal due process standards for mandatory evidentiary presumptions in criminal cases. See Ulster County ; This Court has recognized, by contrast, that civil contempt proceedings do not require proof beyond a reasonable doubt and that the rules governing use of presumptions differ accordingly. In the civil contempt context, we have *646 upheld a
|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
In the civil contempt context, we have *646 upheld a rule that shifts to the contemnor the burden of production on ability to comply, United and we have recognized that the contemnor may bear the burden of persuasion on this issue as well, If the contempt proceeding in this case may be characterized as civil in nature, as petitioner urges, then under our precedents the presumption provided in Cal. Civ. Proc. Code Ann. 1209.5 (West 1982) would not violate the Due Process Clause. The characterization of a state proceeding as civil or criminal for the purpose of applying the Due Process Clause of the Fourteenth Amendment is itself a question of federal law. The substance of particular contempt proceedings determines whether they are civil or criminal, regardless of the label attached by the court conducting the proceedings. See ; Penfield ; ; ; Civil contempt proceedings are primarily coercive; criminal contempt proceedings are punitive. As the Court explained in : "The distinction between refusing to do an act commanded, remedied by imprisonment until the party performs the required act; and doing an act forbidden, punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment." Failure to pay alimony is an example of the type of act cognizable in an action for civil contempt. Whether a particular contempt proceeding is civil or criminal can be inferred from objective features of the proceeding and the sanction imposed. The most important indication is whether the judgment inures to the benefit of another party to the proceeding. A fine payable to the complaining party *647 and proportioned to the complainant's loss is compensatory and civil. United Because the compensatory purpose limits the amount of the fine, the contemnor is not exposed to a risk of punitive sanctions that would make criminal safeguards necessary. By contrast, a fixed fine payable to the court is punitive and criminal in character. An analogous distinction can be drawn between types of sentences of incarceration. Commitment to jail or prison for a fixed term usually operates as a punitive sanction because it confers no advantage on the other party. But if a contemnor is incarcerated until he or she complies with a court order, the sanction is civil. Although the imprisonment does not compensate the adverse party directly, it is designed to obtain compliance with a court order made in that party's favor. "When the [contemnors] carry `the keys of their prison in their own pockets,' the action `is
|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
of their prison in their own pockets,' the action `is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.' " Shillitani, III Several peculiar features of California's contempt law make it difficult to determine whether the proceeding in this case was civil or criminal. All contempt proceedings in California courts are governed by the same procedural rules. Cal. Civ. Proc. Code Ann. 1209-1222 (West 1982 and Supp. 1988); In re Morris, ; Wright, Byrne, Haakh, Westbrook, & Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F. R. D. 180 (1955). Because state law provides that defendants in civil contempt proceedings are entitled to most of the protections guaranteed to ordinary criminal defendants, the California courts have held that civil contempt proceedings are quasi-criminal under state law. See, e. g., ; *648 Culver ; In re Martin, Cal. Rptr. 451, Therefore, indications that the California Superior Court conducted respondent's hearing as a criminal proceeding do not conclusively demonstrate for purposes of federal due process analysis that respondent was tried for criminal contempt. Certain formal aspects of the proceeding below raise the possibility that it involved criminal contempt. The orders to show cause stated that "[a] contempt proceeding is criminal in nature" and that a violation would subject the respondent to "possible penalties." App. 18, 21. The orders advised respondent of his right to an attorney. During the hearing, the trial judge told respondent that he had a constitutional right not to testify. Finally, the judge imposed a determinate sentence of five days in jail for each count of contempt, to be served consecutively. See Cal. Civ. Proc. Code Ann. 1218 (West 1982) (contempt may be punished by a fine not exceeding $500, or imprisonment not exceeding five days, or both); cf. Cal. Civ. Proc. Code Ann. 1219 (West 1982) (contempt may be punished by imprisonment until an act is performed, if the contempt is the omission to perform the act). Nevertheless, the substance of the proceeding below and the conditions on which the sentence was suspended reveal that the proceeding was civil in nature. Mrs. Feiock initiated the underlying action in order to obtain enforcement of the child support order for the benefit of the Feiock children. The California District Attorney conducted the case under a provision of the URESA that authorizes him to act on Mrs. Feiock's behalf. Cal. Civ. Proc. Code Ann. 1680 (West 1982). As the very caption of the case in this Court indicates, the District Attorney is acting
|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
case in this Court indicates, the District Attorney is acting on behalf of Mrs. Feiock, not as the representative of the State of California in a criminal prosecution. Both of the provisions of California's *649 enactment of the URESA that authorize contempt proceedings appear in a chapter of the Code of Civil Procedure entitled "Civil Enforcement." 2, 1685. It appears that most States enforce child and spousal support orders through civil proceedings like this one, in which the burden of persuasion is shifted to the defendant to show inability to comply. J. Atkinson, Modern Child Custody Practice 556 ; H. Krause, Child Support in America 65 (1981); Annot., 53 A. L. R. 2d 591, 607-616 These indications that the proceeding was civil are confirmed by the character of the sanction imposed on respondent. The California Superior Court sentenced respondent to a fixed term of 25 days in jail. Without more, this sanction would be punitive and appropriate for a criminal contempt. But the court suspended the determinate sentence and placed respondent on three years' informal probation on the conditions that he comply with the support order in the future and begin to pay on the arrearage that he had accumulated in the past. App. 40. These special conditions aim exclusively at enforcing compliance with the existing child support Our precedents indicate that such a conditional sentence is coercive rather than punitive. Thus in we observed that civil contempt may be punished by an order that "the defendant stand committed unless and until he performs the affirmative act required by the court's " 221 U.S., In Shillitani, we decided that civil contempt could be punished by a prison sentence fixed at two years if it included a proviso that the contemnor would be released as soon as he complied with the court In this case, if respondent performs his obligations under the original court order, he can avoid going to jail at all. Like the sentence in Shillitani, respondent's prison sentence is coercive rather than punitive because it effectively "conditions release upon the contemnor's willingness to [comply]." *650 It is true that the order imposing the sentence does not expressly provide that, if respondent is someday incarcerated and if he subsequently complies, he will be released immediately. The parties disagree about what will happen if this contingency arises, Tr. of Oral Arg. 44, 45-47, and there is no need to address today the question whether the failure to grant immediate release would render the sanction criminal. In the case before us respondent carries something even better than the "keys to the
|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
respondent carries something even better than the "keys to the prison" in his own pocket: as long as he meets the conditions of his informal probation, he will never enter the jail. It is critical that the only conditions placed on respondent's probation, apart from the requirement that he conduct himself generally in accordance with the law, are that he cure his past failures to comply with the support order and that he continue to comply in the future.[*] The sanction imposed on respondent is unlike ordinary criminal probation because it is collateral to a civil proceeding initiated by a private party, and respondent's sentence is suspended on the condition that he comply with a court order entered for the benefit of that party. This distinguishes respondent's sentence from suspended criminal sentences imposed outside the contempt context. This Court traditionally has inquired into the substance of contempt proceedings to determine whether they are civil or criminal, paying particular attention to whether the sanction *651 imposed will benefit another party to the proceeding. In this case, the California Superior Court suspended respondent's sentence on the condition that he bring himself into compliance with a court order providing support for his children, represented in the proceeding by petitioner. I conclude that the proceeding in this case should be characterized as one for civil contempt, and I would reverse the judgment below.
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
The Court correctly determines that States have the power to require Presidential electors to vote for the candi- date chosen by the people of the State. I disagree, however, with attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply rec- ognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohib to the States are controlled by the people of each State.” U. S. Term I A The Constitution does not address—expressly or by nec- essary implication—whether States have the power to re- quire that Presidential electors vote for the candidates cho- sen by the people. Article II, and the Twelfth Amendment provide for the election of the President through a body of electors. But neither speaks directly to a State’s power over elector voting. 2 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment The only provision in the Constitution that arguably ad- dresses a State’s power over Presidential electors is Clause 2 of Article II, That Clause provides, in relevant part, that “[e]ach State shall appoint, in such Manner as the Leg- islature thereof may direct, a Number of Electors.” As I have previously explained, this language “imposes an af- firmative obligation on the States” to establish the manner for appointing electors. U. S. Term (dissenting opinion). By using the term “shall,” “the Clause expressly requires action by the States.” (inter- nal quotation marks omitted); see also Maine Community Health Options v. United States, 590 U. S. (2020) (slip op., at 12) (“The first sign that the statute imposed an obligation is mandatory language: ‘shall’ ”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, (1998) (recognizing that “ ‘shall’ [n]ormally creates an obli- gation”). This obligation to provide the manner of appoint- ing electors does not expressly delegate power to States; it simply imposes an affirmative duty. See U. S. Term –863 B In a somewhat cursory analysis, the Court concludes that the States’ duty to appoint electors “in such Manner as the Legislature thereof may direct,” Art. II, cl. 2, provides an express grant of “power to appoint an elector.” Ante, at 9. As explained above, this interpretation erroneously con- flates the imposition of a duty with the granting of a power. But even setting that issue aside, I cannot agree with the Court’s analysis. The Court appears to misinterpret Article II, by overreading language as authorizing the broad power to impose and enforce substantive conditions on ap- pointment. The Court then
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
and enforce substantive conditions on ap- pointment. The Court then misconstrues the State of Washington’s law as enforcing a condition of appointment. Cite as: 591 U. S. (2020) 3 THOMAS, J., concurring in judgment 1 The Court’s conclusion that the text of Article II, ex- pressly grants States the power to impose substantive con- ditions or qualifications on electors is highly questionable. Its interpretation appears to strain the plain meaning of the text, ignore historical evidence, and give the term “Man- ner” different meanings in parallel provisions of Article I and Article II. First, the Court’s attempt to root analysis in Article II, seems to stretch the plain meaning of the Constitution’s text. Article II, provides that States shall appoint elec- tors “in such Manner as the Legislature thereof may direct.” At the time of the founding, the term “manner” referred to a “[f]orm” or “method.” 1 S. Johnson, A Dictionary of the English Language (6th ed. 1785); see also 1 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795). These definitions suggest that Article II requires state legislatures merely to set the approach for selecting Presidential electors, not to impose substantive limitations on whom may become an elector. And determining the “Manner” of appointment certainly does not include the power to impose requirements as to how the electors vote after they are appointed, which is what the Washington law addresses. See infra, at 8–9. Historical evidence from the founding also suggests that the “Manner” of appointment refers to the method for se- lecting electors, rather than the substantive limitations placed on the position. At the Convention, the Framers de- bated whether Presidential electors should be selected by the state legislatures or by other electors chosen by the vot- ers of each State. Oliver Ellsworth and Luther Martin, for example, thought the President should be chosen by elec- tors selected by state legislatures. Alexander Hamilton, however, pre- ferred a system in which the President would be chosen “by electors chosen by electors chosen by the people.” The 4 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment final language of Article II “seems to have reconciled [the] contrariety of views by leaving it to the state legislatures” to set the Manner of elector appointment. In context, it is clear that the Framers understood “Manner” in Article II, to refer to the mode of appointing electors—con- sistent with the plain meaning of the term. This understanding of “Manner” was seemingly shared by those at the ratifying conventions. For instance, at the North Carolina ratifying convention, John Steele
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
For instance, at the North Carolina ratifying convention, John Steele stated that “[t]he power over the manner of elections [under Arti- cle I, does not include that of saying who shall vote.” 4 Debates on the Constitution 71 (J. Elliot ed. 1863) (empha- sis added). Rather “the power over the manner only enables [States] to determine how these electors shall elect.” (emphasis added and deleted). In short, the historical con- text and contemporaneous use of the term “Manner” seem to indicate that the Framers and the ratifying public both understood the term in accordance with plain meaning. Finally, the Court’s interpretation gives the same term—“Manner”—different meanings in two parallel provi- sions of the Constitution. Article I, states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” In U. S. Term the Court concluded that the term “Manner” in Article I includes only “a grant of authority to issue procedural regulations,” not “the broad power to set qualifications.” – 833 (majority opinion); see also at 861–864 (THOMAS, J., dissenting). Yet, today, the Court appears to take the exact opposite view. The Court interprets the term “Manner” in Article II, to include the power to impose conditions or qualifications on the appointment of electors. Ante, at 9–10. With respect, I demur. “When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution elf.” Arizona Cite as: 591 U. S. (2020) 5 THOMAS, J., concurring in judgment State (ROBERTS, C. J., dissent- ing); cf. (2014) (KAGAN, J., for the Court) (“ ‘[W]ords repeated in dif- ferent parts of the same statute generally have the same meaning’ ” (quoting (2014)). While terms may not always have the exact same meaning throughout the Constitution, here we are inter- preting the same word (“Manner”) in two provisions that the Court has already stated impose “paralle[l]” duties— setting the “ ‘Manner of holding Elections’ ” and setting the “ ‘Manner’ ” of “ ‘appoint[ing] a Number of Electors.’ ” U. S. Term –805 (majority opinion). Nothing in the Constitution’s text or history indicates that the Court should take the strongly disfavored step of con- cluding that the term “Manner” has two different meanings in these closely aligned provisions. All the Court can point to in support of position is a single sentence in which suggested that a State’s power to impose a requirement that electors pledge to vote for their party’s nominee comes from Article II, But this statement is simply
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
nominee comes from Article II, But this statement is simply made in passing in response to one of the parties’ argu- ments. It is curiously bereft of reasoning or analysis of Ar- ticle II. We generally look to the text to govern our analysis rather than insouciantly follow stray, “incomplete” state- ments in our prior opinions, see Thryv, Inc. v. Click-To-Call Technologies, LP, 590 U. S. (2020) (slip op., at 13). In my view, we should be guided by the text here. 2 Even accepting the Court’s broad interpretation of Clause 2 of Article II, I cannot agree with determination that this Clause expressly authorizes the Washington law at is- sue here. In an attempt to tie Washington’s law to the State’s “power to appoint an elector,” see ante, at 9, the 6 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment Court construes Wash. Rev. Code (2016) as “enforc[ing] a pledge.” See ante, at 10; see also ante, at 1– 2, 7–9, 17. But did not involve the enforcement of a pledge or relate to the appointment process at all.1 It simply regulated electors’ votes, unconnected to the ap- pointment process. To understand the Court’s error, a brief summary of theory is necessary. According to the Court, Article II, grants States “the power to appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Ante, at 9. That “power to appoint an elector,” the Court states, “includes power to condition his appointment.” The power to condition appointment in turn allows the State to insist that an “elector pledge to cast his Electoral College ballot for his party’s presidential nominee.” Ante, at 9–10. And finally, “the State’s appointment power enables the enforcement of a pledge.” Ante, at 10. The Court’s theory is entirely premised on the State exercising a power to appoint. Assuming the Court has correctly interpreted Article II, there are certain circumstances in which this theory could stand. Some States expressly require electors to pledge to vote for a party nominee as a condition of appoint- ment and then impose a penalty if electors violate that pledge. For example, under Oklahoma law, “[e]very party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party.” Okla. Stat., Tit. 26, 102 (2019). Oklahoma then penalizes the violation of that oath: “Any Presidential Elector who violates his oath as a Presidential Elector shall be guilty of a misdemeanor and, —————— 1 In 2019, Washington revised
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
of a misdemeanor and, —————— 1 In 2019, Washington revised laws addressing Presidential elec- tors, eliminating the provision imposing a civil penalty on faithless elec- tors. See 2019 Wash. Sess. Laws pp. 755–758. Cite as: 591 U. S. (2020) 7 THOMAS, J., concurring in judgment upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00).” 109 (emphasis added). Other States have similar laws, first re- quiring a pledge as a condition of appointment and then pe- nalizing the violation of that pledge. See, e.g., – 10–4–1.7(a) (2019) (imposing pledge requirement); 4–9(d) (stating that “[a] presidential elector who pre- sents a ballot marked in violation of the presidential elec- tor’s pledge executed under section 1.7 of this chapter, vacates the office of presidential elector” (emphasis added)); (2020 Cum. Supp.) (imposing pledge re- quirement); (stating that “[a]n elector who presents a ballot marked in violation of the elector’s pledge executed under section 208.43 vacates the office of elec- tor” (emphasis added)).2 But not all States attempt to bind electors’ votes through the appointment process. Some States simply impose a le- gal duty that has no connection to elector appointment. See ante, at 5. For example, New Mexico imposes a legal duty on electors: “All presidential electors shall cast their bal- lots in the electoral college for the candidates of the political party which nominated them as presidential electors.” N. M. Stat. Ann. (Supp. 2011). And “[a]ny pres- idential elector who casts his ballot in violation of [this duty] is guilty of a fourth degree felony.” Cal- ifornia has a similar system. It first imposes a legal duty on electors to vote for the nominated candidates of the po- litical party they represent if those candidates are alive. Cal. Elec. Code Ann. (West 2019). It then imposes a punishment on “[e]very person charged with the perfor- mance of any duty under any law of this state relating to elections, who willfully neglects or —————— 2 See also –25–304, 13–25–307(4) (2019); Neb. Rev. Stat. 32–714(4) (2016); Wash. Rev. Code A.56.090(3) (2019). 8 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment refuses to perform it.” These laws penalize elec- tors for their faithless votes. But they do not attempt to regulate the votes of electors through the appointment pro- cess. In fact, these laws have nothing to do with elector ap- pointment. The Court recognizes the distinction between these two types of laws, i.e., laws enforcing appointment conditions and laws that regulate electors outside of the appointment process. See ante, at 5 (recognizing that some States “merely impose
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
See ante, at 5 (recognizing that some States “merely impose [a] duty by law”). But it claims this is merely a “small semantic differenc[e].” Ante, at 10, n. 6. Far from being semantic, the difference between the power to impose a “condition of appointment” and the power to im- pose restrictions on electors that have nothing to do with appointment is fundamental to the Court’s textual argu- ment. The Court’s entire analysis is premised on States’ purported Article II “power to appoint an elector” and “to condition his appointment.” Ante, at 9. The Court does not, and cannot, claim that the text of Article II provides States power over anything other than the appointment of electors. See ante, at 9–10. Here, the challenged Washington law did not enforce any appointment condition. It provided that “[a]ny elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” Wash. Rev. Code (2016). Unlike the laws of Oklahoma, Indiana, Minnesota and the other States discussed above, a violation of was not predicated on violating a pledge or any —————— 3 Michigan likewise does not regulate electors through the appoint- ment process. Under Michigan law, the failure of an already appointed elector to resign “signifies” that the elector “consent[s] to serve and to cast his vote for the candidates for president and vice-president appear- ing on the Michigan ballot of the political party which nominated him.” (2008). Attempting to cast a vote for another candidate “constitutes a resignation from the office of elector.” Cite as: 591 U. S. (2020) 9 THOMAS, J., concurring in judgment other condition of appointment. In fact, it did not even men- tion a pledge, which was set forth in a separate, unrefer- enced provision. See Thus, had no connection to the appointment process and could be en- forced independent of the existence of any pledge require- ment. While the Court’s description of as a law enforcing a condition of appointment may be helpful for the Court’s claim that Washington’s law was rooted in Article II, “power to appoint,” it is simply not accurate. Thus, even accepting the Court’s strained reading of Article II, text, I cannot agree with the Court’s effort to reconcile Washington’s law with desired theory. In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people. The Court’s attempt to ground such a power in Article II’s text falls short. Rather than
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
a power in Article II’s text falls short. Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States’ power in this regard. II When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. The application of this fundamental principle should guide our decision here. A “The ultimate source of the Constitution’s authority is the consent of the people of each individual State.” U. S. Term When the States ratified the Federal Constitution, the people of each State acquiesced in the transfer of limited power to the Federal Government. They ceded only those powers granted to the Federal Government by the Constitution. 10 CHIAFALO v. WASHINGTON THOMAS, J., concurring in judgment “The Federal Government and the States thus face differ- ent default rules: Where the Constitution is silent about the exercise of a particular power[,] the Federal Government lacks that power and the States enjoy it.” at ; see also United 5 U.S. 126, This allocation of power is apparent in the structure of our Constitution. The Federal Government “is acknowl- edged by all to be one of enumerated powers.” McCulloch v. Maryland, “[T]he powers del- egated by the Constitution to the federal government are few and defined,” while those that belong to the States “remain numerous and indefinite.” The Federalist No. 45, p. 2 (C. Rossiter ed. 1961) (J. Madison). Article I, for example, enumerates various legislative powers in but it specifically lim Congress’ authority to the “legislative Powers herein granted,” States face no such constraint because the Constitution does not delineate the powers of the States. Article I, contains a brief list of powers removed from the States, but States are otherwise “free to exercise all powers that the Constitution does not withhold from them.” at (THOMAS, J., dissenting). This structural principle is explicitly enshrined in the Tenth Amendment. That Amendment states that “[t]he powers not delegated to the United States by the Constitu- tion, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” As Justice Story ex- plained, “[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enu- merated powers, it follows irresistibly, that what is not con- ferred, is withheld, and belongs to the state authorities.” 3 J. Story, Commentaries on the Constitution of
|
Justice Thomas
| 2,020 | 1 |
concurring
|
Chiafalo v. Washington
|
https://www.courtlistener.com/opinion/4765903/chiafalo-v-washington/
|
state authorities.” 3 J. Story, Commentaries on the Constitution of the United States p. 752 (1833); see also Alden v. Maine, 527 U.S. 706, 714 (1999); New York v. United States, 505 U. S. Cite as: 591 U. S. (2020) 11 THOMAS, J., concurring in judgment 144, 156 (1992). In other words, the Tenth Amendment “states but a truism that all is retained which has not been surrendered,” United (1941), “mak[ing] clear that powers reside at the state level except where the Constitution removes them from that level,” U. S. Term at (THOMAS, J., dis- senting); see also 469 U.S. 5, Thus, “[w]here the Constitution is silent about the exer- cise of a particular power[,] that is, where the Constitution does not speak either expressly or by necessary implica- tion,” the power is “either delegated to the state govern- ment or retained by the people.” U. S. Term at 847– ; cf. (stating that the Federal Government’s powers under the Constitution must be “ex- pressly given, or given by necessary implication”). B This fundamental allocation of power applies in the con- text of the electoral college. Article II, and the Twelfth Amendment address the election of the President through a body of electors. These sections of the Constitution pro- vide the Federal Government with limited powers concern- ing the election, set various requirements for the electors, and impose an affirmative obligation on States to appoint electors. Art. II, Amdt. 12. Each of these directives is consistent with the general structure of the Constitution and the principle of reserved powers. See at 9–10; U. S. Term Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental dis- tribution of power preserved by the Tenth Amendment. Of course, the powers reserved to the States concerning Presidential electors cannot “be exercised in such a way as to violate express constitutional commands.” Williams v. 12 That is, powers related to electors reside with States to the extent that the Constitu- tion does not remove or restrict that power. Thus, to inval- idate a state law, there must be “something in the Federal Constitution that deprives the [States of] the power to enact such [a] measur[e].” U. S. Term As the Court recognizes, nothing in the Constitution pre- vents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by inter- preting the terms “appoint,” “Electors,” “vote,” and “by Bal- lot” to align with the Framers’ expectations of discretion in elector voting.
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
In this case the Court is called upon to decide whether *301 the Sixth Amendment[1] grants an accused the right to have counsel present whenever the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. The United Court of Appeals for the District of Columbia Circuit, sitting en banc, held, by a 5-to-4 vote, that the accused possesses this right to counsel. 149 U. S. App. D. C. 1, The court's holding is inconsistent with decisions of the courts of appeals of nine other circuits.[2] We granted certiorari *302 to resolve the conflict and to decide this important constitutional question. We reverse and remand. I On the morning of August 26, 1965, a man with a stocking mask entered a bank in Washington, D. C., and began waving a pistol. He ordered an employee to hang up the telephone and instructed all others present not to move. Seconds later a second man, also wearing a stocking mask, entered the bank, scooped up money from tellers' drawers into a bag, and left. The gunman followed, and both men escaped through an alley. The robbery lasted three or four minutes. A Government informer, Clarence McFarland, told authorities that he had discussed the robbery with Charles J. Ash, Jr., the respondent here. Acting on this information, an FBI agent, in February 1966, showed five black-and-white mug shots of Negro males of generally the same age, height, and weight, one of which was of Ash, to four witnesses. All four made uncertain identifications of Ash's picture. At this time Ash was not in custody and had not been charged. On April 1, 1966, an indictment was returned charging Ash and a codefendant, John L. Bailey, in five counts related to this *303 bank robbery, in violation of D. C. Code Ann. 22-2901 and 18 U.S. C. 13 (a). Trial was finally set for May 1968, almost three years after the crime. In preparing for trial, the prosecutor decided to use a photographic display to determine whether the witnesses he planned to call would be able to make in-court identifications. Shortly before the trial, an FBI agent and the prosecutor showed five color photographs to the four witnesses who previously had tentatively identified the black-and-white photograph of Ash. Three of the witnesses selected the picture of Ash, but one was unable to make any selection. None of the witnesses selected the picture of Bailey which was in the group. This post-indictment[3] identification provides the basis for respondent Ash's
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
group. This post-indictment[3] identification provides the basis for respondent Ash's claim that he was denied the right to counsel at a "critical stage" of the No motion for severance was made, and Ash and Bailey were tried jointly. The trial judge held a hearing on the suggestive nature of the pretrial photographic displays.[4] The judge did not make a clear ruling on suggestive nature, but held that the Government had demonstrated by "clear and convincing" evidence that in-court identifications would be "based on observation of *304 the suspect other than the intervening observation." App. 63-64. At trial, the three witnesses who had been inside the bank identified Ash as the gunman, but they were unwilling to state that they were certain of their identifications. None of these made an in-court identification of Bailey. The fourth witness, who had been in a car outside the bank and who had seen the fleeing robbers after they had removed their masks, made positive in-court identifications of both Ash and Bailey. Bailey's counsel then sought to impeach this in-court identification by calling the FBI agent who had shown the color photographs to the witnesses immediately before trial. Bailey's counsel demonstrated that the witness who had identified Bailey in court had failed to identify a color photograph of Bailey. During the course of the examination, Bailey's counsel also, before the jury, brought out the fact that this witness had selected another man as one of the robbers. At this point the prosecutor became concerned that the jury might believe that the witness had selected a third person when, in fact, the witness had selected a photograph of Ash. After a conference at the bench, the trial judge ruled that all five color photographs would be admitted into evidence. The Court of Appeals held that this constituted the introduction of a post-indictment identification at the prosecutor's request and over the objection of defense counsel.[5] *305 McFarland testified as a Government witness. He said he had discussed plans for the robbery with Ash before the event and, later, had discussed the results of the robbery with Ash in the presence of Bailey. McFarland was shown to possess an extensive criminal record and a history as an informer. The jury convicted Ash on all counts. It was unable to reach a verdict on the charges against Bailey, and his motion for acquittal was granted. Ash received concurrent sentences on the several counts, the two longest being 80 months to 12 years. The five-member majority of the Court of Appeals held that Ash's right to counsel, guaranteed by the
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
Appeals held that Ash's right to counsel, guaranteed by the Sixth Amendment, was violated when his attorney was not given the opportunity to be present at the photographic displays conducted in May 1968 before the trial. The majority relied on this Court's lineup cases, United and and on The majority did not reach the issue of suggestiveness; their opinion implies, however, that they would order a remand for additional findings by the District Court. 149 U. S. App. D. C., at The majority refrained from deciding whether the in-court identifications could have independent bases, at 14-15 and nn. 20, -106 and nn. 20, but expressed doubt that the identifications at the trial had independent origins. Dissenting opinions, joined by four judges, disagreed with the decision of the majority that the photographic identification was a "critical stage" requiring counsel, and criticized the majority's suggestion that the in-court identifications were tainted by defects in the photographic identifications. -134. *306 II The Court of Appeals relied exclusively on that portion of the Sixth Amendment providing, "In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence." The right to counsel in Anglo-American law has a rich historical heritage, and this Court has regularly drawn on that history in construing the counsel guarantee of the Sixth Amendment. We re-examine that history in an effort to determine the relationship between the purposes of the Sixth Amendment guarantee and the risks of a photographic identification. In 28 U.S. 45, the Court discussed the English common-law rule that severely limited the right of a person accused of a felony to consult with counsel at trial. The Court examined colonial constitutions and statutes and noted that "in at least twelve of the thirteen colonies the rule of the English common law, in the respect now under consideration, had been definitely rejected and the right to counsel fully recognized in all criminal prosecutions, save that in one or two instances the right was limited to capital offenses or to the more serious crimes." The Sixth Amendment counsel guarantee, thus, was derived from colonial statutes and constitutional provisions designed to reject the English common-law rule. Apparently several concerns contributed to this rejection at the very time when countless other aspects of the common law were being imported. One consideration was the inherent irrationality of the English limitation. Since the rule was limited to felony proceedings, the result, absurd and illogical, was that an accused misdemeanant could rely fully on counsel, but *30 the accused felon, in theory at least,[6] could consult counsel
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
the accused felon, in theory at least,[6] could consult counsel only on legal questions that the accused proposed to the court. See 28 U. S., at 60. English writers were appropriately critical of this inconsistency. See, for example, 4 W. Blackstone, Commentaries *355. A concern of more lasting importance was the recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The function of counsel as a guide through complex legal technicalities long has been recognized by this Court. Mr. Justice Sutherland's well-known observations in Powell bear repeating here: "Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." 28 U.S., at 69. The Court frequently has interpreted the Sixth Amendment *308 to assure that the "guiding hand of counsel" is available to those in need of its assistance. See, for example, 32 U.S. 335, and 40 U.S. 25, Another factor contributing to the colonial recognition of the accused's right to counsel was the adoption of the institution of the public prosecutor from the Continental inquisitorial system. One commentator has explained the effect of this development: "[E]arly in the eighteenth century the American system of judicial administration adopted an institution which was (and to some extent still is) unknown in England: while rejecting the fundamental juristic concepts upon which continental Europe's inquisitorial system of criminal procedure is predicated, the colonies borrowed one of its institutions, the public prosecutor, and grafted it upon the body of English (accusatorial) procedure embodied in the common law. Presumably, this innovation was brought about by the lack of lawyers, particularly in the newly settled regions, and by the increasing distances between the colonial capitals on the eastern seaboard and the ever-receding western frontier. Its result was that, at a time when virtually all but treason trials in England were still in the
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
all but treason trials in England were still in the nature of suits between private parties, the accused in the colonies faced a government official whose specific function it was to prosecute, and who was incomparably more familiar than the accused with the problems of procedure, the idiosyncrasies of juries, and, last but not least, the personnel of the court." F. Heller, The Sixth Amendment 20- (1951) *309 Thus, an additional motivation for the American rule was a desire to minimize the imbalance in the adversary system that otherwise resulted with the creation of a professional prosecuting official. Mr. Justice Black, writing for the Court in spoke of this equalizing effect of the Sixth Amendment's counsel guarantee: "It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." This historical background suggests that the core purpose of the counsel guarantee was to assure "Assistance" at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.[] Later developments have led this Court *0 to recognize that "Assistance" would be less than meaningful if it were limited to the formal trial itself. This extension of the right to counsel to events before trial has resulted from changing patterns of criminal procedure and investigation that have tended to generate pretrial events that might appropriately be considered to be parts of the trial itself. At these newly emerging and significant events, the accused was confronted, just as at trial, by the procedural system, or by his expert adversary, or by both. In the Court explained the process of expanding the counsel guarantee to these confrontations: "When the Bill of Rights was adopted, there were no organized police forces as we know them today. The accused confronted the prosecutor and the witnesses against him, and the evidence was marshalled, largely at the trial itself. In contrast, today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality. In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to `critical' *1 stages of the proceedings." The Court consistently has applied a historical interpretation of the guarantee, and has expanded the constitutional right to counsel only when new contexts appear
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
the constitutional right to counsel only when new contexts appear presenting the same dangers that gave birth initially to the right itself. Recent cases demonstrate the historical method of this expansion. In Hamilton v. and in 33 U.S. 59 the accused was confronted with the procedural system and was required, with definite consequences, to enter a plea. In 3 U.S. 201 the accused was confronted by prosecuting authorities who obtained, by ruse and in the absence of defense counsel, incriminating statements. In Coleman v. (190), the accused was confronted by his adversary at a "critical stage" preliminary hearing at which the uncounseled accused could not hope to obtain so much benefit as could his skilled adversary. The analogy between the unrepresented accused at the pretrial confrontation and the unrepresented defendant at trial, implicit in the cases mentioned above, was explicitly drawn in : "The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness`that's the man.'" -236. *2 Throughout this expansion of the counsel guarantee to trial-like confrontations, the function of the lawyer has remained essentially the same as his function at trial. In all cases considered by the Court, counsel has continued to act as a spokesman for, or advisor to, the accused. The accused's right to the "Assistance of Counsel" has meant just that, namely, the right of the accused to have counsel acting as his assistant. In Hamilton and White, for example, the Court envisioned the lawyer as advising the accused on available defenses in order to allow him to plead intelligently. -55; 33 U. S., at 60. In Massiah counsel could have advised his client on the benefits of the Fifth Amendment and could have sheltered him from the overreaching of the 3 U.S., at 205. Cf. In Coleman the skill of the lawyer in examining witnesses, probing for evidence, and making legal arguments was relied upon by the Court to demonstrate that, in the light of the purpose of the preliminary hearing under law, the accused required "Assistance" at that The function of counsel in rendering "Assistance" continued at the lineup under consideration in and its companion cases. Although the accused was not confronted there with legal questions, the lineup offered opportunities for prosecuting authorities to take advantage of the accused. Counsel was seen by the Court
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
advantage of the accused. Counsel was seen by the Court as being more sensitive to, and aware of, suggestive influences than the accused himself, and as better able to reconstruct the events at trial. Counsel present at lineup would be able to remove disabilities of the accused in precisely the same fashion that counsel compensated for the disabilities of the layman at trial. Thus, the Court mentioned that the accused's memory might be dimmed by "emotional tension," that the accused's credibility at *3 trial would be diminished by his status as defendant, and that the accused might be unable to present his version effectively without giving up his privilege against compulsory self-incrimination. United -2. It was in order to compensate for these deficiencies that the Court found the need for the assistance of counsel. This review of the history and expansion of the Sixth Amendment counsel guarantee demonstrates that the test utilized by the Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. Against the background of this traditional test, we now consider the opinion of the Court of Appeals. III Although the Court of Appeals' majority recognized the argument that "a major purpose behind the right to counsel is to protect the defendant from errors that he himself might make if he appeared in court alone," the court concluded that "other forms of prejudice," mentioned and recognized in could also give rise to a right to counsel. 149 U. S. App. D. C., at 10, These forms of prejudice were felt by the court to flow from the possibilities for mistaken identification inherent in the photographic display.[8] *4 We conclude that the dangers of mistaken identification, mentioned in were removed from context by the Court of Appeals and were incorrectly utilized as a sufficient basis for requiring counsel. Although did discuss possibilities for suggestion and the difficulty for reconstructing suggestivity, this discussion occurred only after the Court had concluded that the lineup constituted a trial-like confrontation, requiring the "Assistance of Counsel" to preserve the adversary process by compensating for advantages of the prosecuting authorities. The above discussion of has shown that the traditional Sixth Amendment test easily allowed extension of counsel to a lineup. The similarity to trial was apparent, and counsel was needed to render "Assistance" in counterbalancing any "overreaching" by the After the Court in held that a lineup constituted a trial-like confrontation requiring counsel, a more difficult issue remained in the case for consideration. The same changes
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
issue remained in the case for consideration. The same changes in law enforcement that led to lineups and pretrial hearings also generated other events at which the accused was confronted by the The Government had argued in that if counsel was required at a lineup, the same forceful considerations would mandate counsel at other preparatory steps in the "gathering of the prosecution's evidence," such as, for *5 particular example, the taking of fingerprints or blood samples. 3 U.S., at 22. The Court concluded that there were differences. Rather than distinguishing these situations from the lineup in terms of the need for counsel to assure an equal confrontation at the time, the Court recognized that there were times when the subsequent trial would cure a one-sided confrontation between prosecuting authorities and the uncounseled defendant. In other words, such stages were not "critical." Referring to fingerprints, hair, clothing, and other blood samples, the Court explained: "Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts." 3 U.S., at 22-228. The structure of viewed in light of the careful limitation of the Court's language to "confrontations,"[9]*6 makes it clear that lack of scientific precision and inability to reconstruct an event are not the tests for requiring counsel in the first instance. These are, instead, the tests to determine whether confrontation with counsel at trial can serve as a substitute for counsel at the pretrial confrontation. If accurate reconstruction is possible, the risks inherent in any confrontation still remain, but the opportunity to cure defects at trial causes the confrontation to cease to be "critical." The opinion of the Court even indicated that changes in procedure might cause a lineup to cease to be a "critical" confrontation: "Legislative or other regulations, such as those of local police departments, which eliminate the risks of abuse and unintentional suggestion at lineup proceedings and the impediments to meaningful confrontation at trial may also remove the basis for regarding the stage as `critical.'" See, however, at 262 n. (opinion of Fortas, J.). The Court of Appeals considered its analysis complete after it decided that a photographic display lacks scientific precision and ease of accurate reconstruction at trial. That analysis, under however, merely carries one to the point where one must establish that the trial itself can provide no substitute for counsel if a
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
trial itself can provide no substitute for counsel if a pretrial confrontation is conducted in the absence of counsel. Judge Friendly, writing for the Second Circuit in United recognized that the "criticality" test of if applied outside the confrontation context, would result in drastic expansion of the right to counsel: "None of the classical analyses of the assistance to be given by counsel, Justice Sutherland's in and Justice Black's in Johnson v. * Zerbst and suggests that counsel must be present when the prosecution is interrogating witnesses in the defendant's absence even when, as here, the defendant is under arrest; counsel is rather to be provided to prevent the defendant himself from falling into traps devised by a lawyer on the other side and to see to it that all available defenses are proffered. Many other aspects of the prosecution's interviews with a victim or a witness to a crime afford just as much opportunity for undue suggestion as the display of photographs; so, too, do the defense's interviews, notably with alibi witnesses." We now undertake the threshhold analysis that must be addressed. IV A substantial departure from the historical test would be necessary if the Sixth Amendment were interpreted to give Ash a right to counsel at the photographic identification in this case. Since the accused himself is not present at the time of the photographic display, and asserts no right to be present, Brief for Respondent 40, no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary. Similarly, the counsel guarantee would not be used to produce equality in a trial-like adversary confrontation. Rather, the guarantee was used by the Court of Appeals to produce confrontation at an event that previously was not analogous to an adversary trial. Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor's trial-preparation interviews with witnesses. Although photography *8 is relatively new, the interviewing of witnesses before trial is a procedure that predates the Sixth Amendment. In England in the 16th and 1th centuries counsel regularly interviewed witnesses before trial. 9 W. Holdsworth, History of English Law 226-228 (1926). The traditional counterbalance in the American adversary system for these interviews arises from the equal ability of defense counsel to seek and interview witnesses himself. That adversary mechanism remains as effective for a photographic display as for other parts of
|
Justice Blackmun
| 1,973 | 11 |
majority
|
United States v. Ash
|
https://www.courtlistener.com/opinion/108846/united-states-v-ash/
|
effective for a photographic display as for other parts of pretrial interviews.[10] No greater limitations are placed on defense counsel in constructing displays, seeking witnesses, and conducting photographic identifications than those applicable to the [11] Selection of the picture of a person other than the accused, or the inability of a witness to make any selection, will be useful to the defense in precisely the same manner that the selection of *9 a picture of the defendant would be useful to the [12] In this very case, for example, the initial tender of the photographic display was by Bailey's counsel, who sought to demonstrate that the witness had failed to make a photographic identification. Although we do not suggest that equality of access to photographs removes all potential for abuse,[13] it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment's counsel guarantee. The argument has been advanced that requiring counsel might compel the police to observe more scientific procedures or might encourage them to utilize corporeal rather than photographic displays.[14] This Court has *320 recognized that improved procedures can minimize the dangers of suggestion. 390 U.S. 3, Commentators have also proposed more accurate techniques.[15] Pretrial photographic identifications, however, are hardly unique in offering possibilities for the actions of the prosecutor unfairly to prejudice the accused. Evidence favorable to the accused may be withheld; testimony of witnesses may be manipulated; the results of laboratory tests may be contrived. In many ways the prosecutor, by accident or by design, may improperly subvert the trial. The primary safeguard against abuses of this kind is the ethical responsibility of the prosecutor,[16] who, as so often has been said, may "strike hard blows" but not "foul ones." 295 U.S. 8, ; 33 U.S. 83, 8- If that safeguard fails, review remains available under due process standards. See ; ; ; (193). These same safeguards apply to misuse of photographs. See *3 We are not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required. We hold, then, that the Sixth Amendment does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. This holding requires reversal of the judgment of the Court of Appeals. Although respondent Ash has urged us to examine this photographic display under the due process standard enunciated in the Court of Appeals, expressing the view that additional findings would be necessary,
|
Justice Rehnquist
| 1,989 | 19 |
majority
|
Duckworth v. Eagan
|
https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/
|
Respondent confessed to stabbing a woman nine times after she refused to have sexual relations with him, and he was convicted of attempted murder Before confessing, respondent was given warnings by the police, which included the advice that a lawyer would be appointed "if and when you go to court" The United States Court of Appeals for the Seventh Circuit held that such advice did not comply with the requirements of We disagree and reverse Late on May 16, 1982, respondent contacted a Chicago police officer he knew to report that he had seen the naked body of a dead woman lying on a Lake Michigan beach Respondent denied any involvement in criminal activity He then took several Chicago police officers to the beach, where the woman was crying for help When she saw respondent, the woman exclaimed: "Why did you stab me? Why did you stab me?" Respondent told the officers that he had been with the woman earlier that night, but that they had been attacked by several men who abducted the woman in a van The next morning, after realizing that the crime had been committed in Indiana, the Chicago police turned the investigation over to the Hammond, Indiana, Police Department Respondent repeated to the Hammond police officers his story that he had been attacked on the lakefront, and that the woman had been abducted by several men After he filled out a battery complaint at a local police station, respondent agreed to go to the Hammond police headquarters for further questioning At about 11 am, the Hammond police questioned respondent Before doing so, the police read to respondent a waiver form, entitled "Voluntary Appearance; Advice of Rights," and they asked him to sign it The form provided: *198 "Before we ask you any questions, you must understand your rights You have the right to remain silent Anything you say can be used against you in court You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning You have this right to the advice and presence of a lawyer even if you cannot afford to hire one We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time You also have the right to stop answering at any time until you've talked to a lawyer"
|
Justice Rehnquist
| 1,989 | 19 |
majority
|
Duckworth v. Eagan
|
https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/
|
answering at any time until you've talked to a lawyer" [1] Respondent signed the form and repeated his exculpatory explanation for his activities of the previous evening Respondent was then placed in the "lockup" at the Hammond police headquarters Some 29 hours later, at about 4 pm on May 18, the police again interviewed respondent Before this questioning, one of the officers read the following waiver form to respondent: "1 Before making this statement, I was advised that I have the right to remain silent and that anything I *199 might say may or will be used against me in a court of law "2 That I have the right to consult with an attorney of my own choice before saying anything, and that an attorney may be present while I am making any statement or throughout the course of any conversation with any police officer if I so choose "3 That I can stop and request an attorney at any time during the course of the taking of any statement or during the course of any such conversation "4 That in the course of any conversation I can refuse to answer any further questions and remain silent, thereby terminating the conversation "5 That if I do not hire an attorney, one will be provided for me" Respondent read the form back to the officers and signed it He proceeded to confess to stabbing the woman The next morning, respondent led the officers to the Lake Michigan beach where they recovered the knife he had used in the stabbing and several items of clothing At trial, over respondent's objection, the state court admitted his confession, his first statement denying any involvement in the crime, the knife, and the clothing The jury found respondent guilty of attempted murder, but acquitted him of rape He was sentenced to 35 years' imprisonment The conviction was upheld on appeal Respondent sought a writ of habeas corpus in the United States District Court for the Northern District of Indiana, claiming, inter alia, that his confession was inadmissible because the first waiver form did not comply with Miranda The District Court denied the petition, holding that the record "clearly manifests adherence to Miranda especially *200 as to the so-called second statement" App to Pet for Cert A52 A divided United States Court of Appeals for the Seventh Circuit reversed The majority held that the advice that counsel would be appointed "if and when you go to court," which was included in the first warnings given to respondent, was "constitutionally defective because it denies an accused indigent
|
Justice Rehnquist
| 1,989 | 19 |
majority
|
Duckworth v. Eagan
|
https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/
|
respondent, was "constitutionally defective because it denies an accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation," and "link[s] an indigent's right to counsel before interrogation with a future event" The majority relied on the Seventh Circuit's decision in United States ex rel which had condemned, as "misleading and confusing," the inclusion of "if and when you go to court" language in Miranda warnings Turning to the admissibility of respondent's confession, the majority thought that "as a result of the first warning, [respondent] arguably believed that he could not secure a lawyer during interrogation" and that the second warning "did not explicitly correct this misinformation" It therefore remanded the case for a determination whether respondent had knowingly and intelligently waived his right to an attorney during the second interview The dissenting judge rejected the majority's "formalistic, technical and unrealistic application of Miranda" and argued that the first warnings passed constitutional muster In any case, he thought that remand was not necessary because the record indicated that this case was covered by -1571 The Court of Appeals denied rehearing en banc, with four judges dissenting from that order App to Pet for Cert A1-A2 We then granted certiorari, 488 US 888 to resolve a conflict among the lower courts as to whether informing a suspect that an attorney would be appointed for him "if and when you go to court" renders Miranda warnings *201 inadequate[2] We agree with the majority of the lower courts that it does not[3] In the Court established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation In now-familiar words, the Court said that the *202 suspect must be told that "he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires" The Court in Miranda "presumed that interrogation in certain custodial circumstances is inherently coercive and that statements made under those circumstances are inadmissible unless the suspect is specifically warned of his Miranda rights and freely decides to forgo those rights" New York v Quarles, 467 US 649, We have never insisted that Miranda warnings be given in the exact form described in that decision[4] In Miranda itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with
|
Justice Rehnquist
| 1,989 | 19 |
majority
|
Duckworth v. Eagan
|
https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/
|
"[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant" 384 US, at 476 See also Rhode Island v 446 US 291, (referring to "the now familiar Miranda warnings or their equivalent") In California v 453 US 355 we stated that "the `rigidity' of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant," and *203 that "no talismanic incantation [is] required to satisfy its strictures" Miranda has not been limited to station house questioning, see Rhode Island v and the officer in the field may not always have access to printed Miranda warnings, or he may inadvertently depart from routine practice, particularly if a suspect requests an elaboration of the warnings The prophylactic Miranda warnings are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected" Michigan v Tucker, 417 US 433, Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement The inquiry is simply whether the warnings reasonably "conve[y] to [a suspect] his rights as required by Miranda" We think the initial warnings given to respondent touched all of the bases required by Miranda The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had "this right to the advice and presence of a lawyer even if [he could] not afford to hire one," and that he had the "right to stop answering at any time until [he] talked to a lawyer" 843 F2d, at As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed "if and when you go to court" The Court of Appeals thought this "if and when you go to court" language suggested that "only those accused who can afford an attorney have the right to have one present before answering any questions," and "implie[d] that if the accused does not `go to court,' i e[,] the government does not file charges, the accused is not entitled to [counsel] at all" In our view, the Court of Appeals misapprehended the effect of the inclusion of "if and when you go to court" language *204 in Miranda warnings First, this instruction accurately described the procedure
|
Justice Rehnquist
| 1,989 | 19 |
majority
|
Duckworth v. Eagan
|
https://www.courtlistener.com/opinion/112322/duckworth-v-eagan/
|
in Miranda warnings First, this instruction accurately described the procedure for the appointment of counsel in Indiana Under Indiana law, counsel is appointed at the defendant's initial appearance in court, Ind Code 35-33-7-6 and formal charges must be filed at or before that hearing, 35-33-7-3(a)[5] We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel The "if and when you go to court" advice simply anticipates that question[6] Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one[7] The Court in Miranda emphasized that it was not suggesting that "each police station must have a `station house lawyer' present at all times to advise prisoners" 384 US, at 474 If the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel Ibid Here, respondent did just that Respondent relies, Brief for Respondent 24-29, on language in California v where we suggested that Miranda warnings would not be sufficient "if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation" 453 US, at 360 The Court of Appeals also referred to in finding deficient the initial warnings given to respondent *205 843 F 2d, But the vice referred to in was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions The warnings in this case did not suffer from that defect Of the eight sentences in the initial warnings, one described respondent's right to counsel "before [the police] ask[ed] [him] questions," while another stated his right to "stop answering at any time until [he] talk[ed] to a lawyer" at We hold that the initial warnings given to respondent, in their totality, satisfied Miranda, and therefore that his first statement denying his involvement in the crime, as well as the knife and the clothing, was properly admitted into evidence The Court of Appeals thought it necessary to remand this case for consideration of whether respondent's second statement was tainted by the first warnings -1558 In view of our disposition of this case, we need not reach that question[8] The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with our
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
In 1966 Pedro Perales, a San Antonio truck driver, then aged 34, height 5' 11", weight about 220 pounds, filed a claim for disability insurance benefits under the Social Security Act. Sections 216 (i) (1), and 223 (d) (1), of that Act, 42 U.S. C. 416 (i) (1) and 42 U.S. C. 423 (d) (1) (1964 ed., Supp. V), both provide that the term "disability" means "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which"[1] Section 205 (g), 42 U.S. C. 405 (g), relating to judicial review, states, "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive" The issue here is whether physicians' written reports of medical examinations they have made of a disability claimant may constitute "substantial evidence" supportive of a finding of nondisability, within the 205 (g) standard, when the claimant objects to the admissibility of those reports and when the only live testimony is presented by his side and is contrary to the reports. I In his claim Perales asserted that on September 29, 1965, he became disabled as a result of an injury to his back sustained in lifting an object at work. He was seen by a neurosurgeon, Dr. Ralph A. Munslow, who first recommended conservative treatment. When this provided no relief, myelography was performed and surgery for a possible protruded intervertebral disc at L-5 was advised. The patient at first hesitated about surgery *391 and appeared to improve. On recurrence of pain, however, he consented to the recommended procedure. Dr. Munslow operated on November 23. The surgical note is in the margin.[2] No disc protrusion or other definitive pathology was identified at surgery. The post-operative diagnosis was: "Nerve root compression syndrome, left." The patient was discharged from Dr. Munslow's care on January 25, 1966, with a final diagnosis of "Neuritis, lumbar, mild." Mr. Perales continued to complain, but Dr. Munslow and Dr. Morris H. Lampert, a neurologist called in consultation, were still unable to find any objective neurological explanation for his complaints. Dr. Munslow advised that he return to work. In April 1966 Perales consulted Dr. Max Morales, Jr., a general practitioner of San Antonio. Dr. Morales hospitalized the patient from April 15 to May 2. His final *392 discharge diagnosis was: "Back sprain, lumbo-sacral spine." Perales then filed his claim. As required by 221 of the Act, 42 U.S. C. 421, the claim was referred to the state agency for determination. The agency obtained the hospital records and a report from Dr. Morales. The report
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
hospital records and a report from Dr. Morales. The report set forth no physical findings or laboratory studies, but the doctor again gave as his diagnosis: "Back sprainlumbo-sacral spine," this time "moderately severe," with "Ruptured disk not ruled out." The agency arranged for a medical examination, at no cost to the patient, by Dr. John H. Langston, an orthopedic surgeon. This was done May 25. Dr. Langston's ensuing report to the Division of Disability Determination was devastating from the claimant's standpoint. The doctor referred to Perales' being "on crutches or cane" since his injury. He noted a slightly edematous condition in the legs, attributed to "inactivity and sitting around"; slight tenderness in some of the muscles of the dorsal spine, thought to be due to poor posture; and "a very mild sprain [of those muscles] which would resolve were he actually to get a little exercise and move." Apart from this, and from the residuals of the pantopaque myelography and hemilaminectomy, Dr. Langston found no abnormalities of the lumbar spine. Otherwise, he described Perales as a "big physical healthy specimen obviously holding back and limiting all of his motions, intentionally. His upper extremities, though they are completely uninvolved by his injury, he holds very rigidly as though he were semi-paralyzed. His reach and grasp are very limited but intentionally so. Neurological examination is entirely normal to detailed sensory examination with pin-wheel, vibratory sensations, and light touch. Reflexes are very active and there is no atrophy anywhere." The *393 orthopedist's summarization, impression, and prognosis are in the margin.[3] The state agency denied the claim. Perales requested reconsideration. Dr. Morales submitted a further report to the agency and an opinion to the claimant's attorney. This outlined the surgery and hospitalizations and his own conservative and continuing treatment of the patient, the medicines prescribed, the administration of ultrasound therapy, and the patient's constant complaints. The doctor concluded that the patient had not made a complete recovery from his surgery, that he was not malingering, that his injury was permanent, and that he was totally and permanently disabled.[4] He recommended against any further surgery. *394 The state agency then arranged for an examination by Dr. James M. Bailey, a board-certified psychiatrist with a subspecialty in neurology. Dr. Bailey's report to the agency on August 30, 1966, concluded with the following diagnosis: "Paranoid personality, manifested by hostility, feelings of persecution and long history of strained interpersonal relationships. "I do not feel that this patient has a separate psychiatric illness at this time. It appears that his personality is conducive to anger, frustrations, etc." The agency
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
his personality is conducive to anger, frustrations, etc." The agency again reviewed the file. The Bureau of Disability Insurance of the Social Security Administration made its independent review. The report and opinion of Dr. Morales, as the claimant's attending physician, were considered, as were those of the other examining physicians. The claim was again denied. Perales requested a hearing before a hearing examiner. The agency then referred the claimant to Dr. Langston and to Dr. Richard H. Mattson for electromyography studies. Dr. Mattson's notes referred to "some chronic or past disturbance of function in the nerve supply" to the left and right anterior tibialis muscles and right *395 extensor digitorium brevis muscles that was "strongly suggestive of lack of maximal effort" and was "the kind of finding that is typically associated with a functional or psychogenic component to weakness." There was no evidence of "any active process effecting [sic] the nerves at present." Dr. Langston advised the agency that Dr. Mattson's finding of "very poor effort" verified what Dr. Langston had found on the earlier physical examination. The requested hearing was set for January 12, in San Antonio. Written notice thereof was given the claimant with a copy to his attorney. The notice contained a definition of disability, advised the claimant that he should bring all medical and other evidence not already presented, afforded him an opportunity to examine all documentary evidence on file prior to the hearing, and told him that he might bring his own physician or other witnesses and be represented at the hearing by a lawyer. The hearing took place at the time designated. A supplemental hearing was held March 31. The claimant appeared at the first hearing with his attorney and with Dr. Morales. The attorney formally objected to the introduction of the several reports of Drs. Langston, Bailey, Mattson, and Lampert, and of the hospital records. Various grounds of objection were asserted, including hearsay, absence of an opportunity for cross-examination, absence of proof the physicians were licensed to practice in Texas, failure to demonstrate that the hospital records were proved under the Business Records Act, and the conclusory nature of the reports. These objections were overruled and the reports and hospital records were introduced. The reports of Dr. Morales and of Dr. Munslow were then submitted by the claimant's counsel and admitted. At the two hearings oral testimony was submitted by claimant Perales, by Dr. Morales, by a former fellow *396 employee of the claimant, by a vocational expert, and by Dr. Lewis A. Leavitt, a physician board-certified in physical medicine and rehabilitation, and
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
Leavitt, a physician board-certified in physical medicine and rehabilitation, and chief of, and professor in, the Department of Physical Medicine at Baylor University College of Medicine. Dr. Leavitt was called by the hearing examiner as an independent "medical adviser," that is, as an expert who does not examine the claimant but who hears and reviews the medical evidence and who may offer an opinion. The adviser is paid a fee by the Government. The claimant, through his counsel, objected to any testimony by Dr. Leavitt not based upon examination or upon a hypothetical. Dr. Leavitt testified over this objection and was cross-examined by the claimant's attorney. He that the consensus of the various medical reports was that Perales had a mild low-back syndrome of musculo-ligamentous origin. The hearing examiner, in reliance upon the several medical reports and the testimony of Dr. Leavitt, observed in his written decision, "There is objective medical evidence of impairment which the heavy preponderance of the evidence indicates to be of mild severity Taken altogether, the Hearing Examiner is of the conclusion that the claimant has not met the burden of proof." He specifically found that the claimant "is suffering from a low back syndrome of musculo-ligamentous origin, and of mild severity"; that while he "has an emotional overlay to his medical impairment it does not require psychiatric treatment and is of minimal contribution, if any, to his medical impairment or to his general ability to engage in substantial gainful activity"; that "[n]either his medical impairment nor his emotional overlay, singly or in combination, constitute a disability as defined" in the Act; and that the claimant is capable of engaging as a salesman in work in which he had previously engaged, of working as a watchman or *397 guard where strenuous activity is not required, or as a ticket-taker or janitor. The hearing examiner's decision, then, was that the claimant was not entitled to a period of disability or to disability insurance benefits. It is to be noted at this point that 205 (d) of the Act, 42 U.S. C. 405 (d), provides that the Secretary has power to issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence and that the Secretary's regulations, authorized by 205 (a), 42 U.S. C. 405 (a), provide that a claimant may request the issuance of subpoenas, 20 CFR 404.926. Perales, however, who was represented by counsel, did not request subpoenas for either of the two hearings. The claimant then made a request for review by the Appeals Council and submitted as supplemental evidence a judgment
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
the Appeals Council and submitted as supplemental evidence a judgment dated June 2, in Perales' favor against an insurance company for workmen's compensation benefits aggregating $11,665.84, plus medical and related expenses, and a medical report letter dated December 28, 1966, by Dr. Coyle W. Williams, apparently written in support of a welfare claim made by Perales. In his letter the doctor noted an essentially negative neurological and physical examination except for tenderness in the lumbar area and limited straight leg raising. He observed, "I cannot explain all his symptoms on a physical basis. I would recommend he would re-condition himself and return to work. My estimation, he has a 15% permanent partial disability the body as a whole." The Appeals Council ruled that the decision of the hearing examiner was correct. Upon this adverse ruling the claimant instituted the present action for review pursuant to 205 (g). Each side moved for summary judgment on the administrative transcript. The District Court that it was reluctant to accept as substantial evidence the opinions of medical *398 experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination; that the opinion of a doctor who had never examined the claimant is entitled to little or no probative value, especially when opposed by substantial evidence including the oral testimony of an examining physician; and that what was before the court amounted to hearsay upon hearsay. The case was remanded for a new hearing before a different examiner. On appeal the Fifth Circuit noted the absence of any request by the claimant for subpoenas and held that, having this right and not exercising it, he was not in a position to complain that he had been denied the rights of confrontation and of cross-examination. It held that the hearsay evidence in the case was admissible under the Act; that, specifically, the written reports of the physicians were admissible in the administrative hearing; that Dr. Leavitt's testimony also was admissible; but that all this evidence together did not constitute substantial evidence when it was objected to and when it was contradicted by evidence from the only live witnesses. On rehearing, the Court of Appeals observed that it did not mean by its opinion that uncorroborated hearsay could never be substantial evidence supportive of a hearing examiner's decision adverse to a claimant. It emphasized that its ruling that uncorroborated hearsay could not constitute substantial evidence was applicable only when the claimant had objected and when the hearsay was directly contradicted by the testimony
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
and when the hearsay was directly contradicted by the testimony of live medical witnesses and by the claimant in person. Certiorari was granted in order to review and resolve this important procedural due process issue. *399 II We therefore are presented with the not uncommon situation of conflicting medical evidence. The trier of fact has the duty to resolve that conflict. We have, on the one hand, an absence of objective findings, an expressed suspicion of only functional complaints, of malingering, and of the patient's unwillingness to do anything about remedying an unprovable situation. We have, on the other hand, the claimant's and his personal physician's earnest pleas that significant and disabling residuals from the mishap of September 1965 are indeed present. The issue revolves, however, around a system which produces a mass of medical evidence in report form. May material of that kind ever be "substantial evidence" when it stands alone and is opposed by live medical evidence and the client's own contrary personal testimony? The courts below have held that it may not. III The Social Security Act has been with us since 1935. Act of August 1935, It affects nearly all of us. The system's administrative structure and procedures, with essential determinations numbering into the millions, are of a size and extent difficult to comprehend. But, as the Government's brief here accurately pronounces, "Such a system must be fairand it must work."[5] Congress has provided that the Secretary "shall have full power and authority to make rules and regulations and to establish procedures necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and *400 regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder." 205 (a), 42 U.S. C. 405 (a). Section 205 (b) directs the Secretary to make findings and decisions; on request to give reasonable notice and opportunity for a hearing; and in the course of any hearing to receive evidence. It then provides: "Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure." In carrying out these statutory duties the Secretary has adopted regulations that state, among other things: "The hearing examiner shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. The procedure at the hearing generally shall be in the discretion of the hearing
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
hearing generally shall be in the discretion of the hearing examiner and of such nature as to afford the parties a reasonable opportunity for a fair hearing." 20 CFR 404.927. From this it is apparent that (a) the Congress granted the Secretary the power by regulation to establish hearing procedures; (b) strict rules of evidence, applicable in the courtroom, are not to operate at social security hearings so as to bar the admission of evidence otherwise pertinent; and (c) the conduct of the hearing rests generally in the examiner's discretion. There emerges an emphasis upon the informal rather than the formal. This, we think, is as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not necessarily be stiff and comfortable only for the trained attorney, and should *401 be liberal and not strict in tone and operation. This is the obvious intent of Congress so long as the procedures are fundamentally fair. IV With this background and this atmosphere in mind, we turn to the statutory standard of "substantial evidence" prescribed by 205 (g). The Court has considered this very concept in other, yet similar, contexts. The National Labor Relations Act, 10 (e), in its original form, provided that the 's findings of fact "if supported by evidence, shall be conclusive." The Court said this meant "supported by substantial evidence" and that this was "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison The Court has adhered to that definition in varying statutory situations. See ; Universal Camera ; V We may accept the propositions advanced by the claimant, some of them long established, that procedural due process is applicable to the adjudicative administrative proceeding involving "the differing rules of fair play, which through the years, have become associated with differing types of proceedings," ; that "the `right' to Social Security benefits is in one sense `earned,' " ; and that the "extent to which procedural due process must be afforded the recipient is influenced by the extent to *402 which he may be `condemned to suffer grievous loss' Accordingly `consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.' " The question, then, is as to what procedural due process requires with respect to examining physicians' reports in a social security disability
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
respect to examining physicians' reports in a social security disability claim hearing. We conclude that a written report by a licensed physician who has examined the claimant and who sets forth in his report his medical findings in his area of competence may be received as evidence in a disability hearing and, despite its hearsay character and an absence of cross-examination, and despite the presence of opposing direct medical testimony and testimony by the claimant himself, may constitute substantial evidence supportive of a finding by the hearing examiner adverse to the claimant, when the claimant has not exercised his right to subpoena the reporting physician and thereby provide himself with the opportunity for cross-examination of the physician. We are prompted to this conclusion by a number of factors that, we feel, assure underlying reliability and probative value: 1. The identity of the five reporting physicians is significant. Each report presented here was prepared by a practicing physician who had examined the claimant.[6] A majority (Drs. Langston, Bailey, and Mattson) were *403 called into the case by the state agency. Although each received a fee, that fee is recompense for his time and talent otherwise devoted to private practice or other professional assignment. We cannot, and do not, ascribe bias to the work of these independent physicians, or any interest on their part in the outcome of the administrative proceeding beyond the professional curiosity a dedicated medical man possesses. 2. The vast workings of the social security administrative system make for reliability and impartiality in the consultant reports. We bear in mind that the agency operates essentially, and is intended so to do, as an adjudicator and not as an advocate or adversary. This is the congressional plan. We do not presume on this record to say that it works unfairly.[7] 3. One familiar with medical reports and the routine of the medical examination, general or specific, will recognize their elements of detail and of value. The particular reports of the physicians who examined claimant Perales were based on personal consultation and personal examination and rested on accepted medical procedures and tests. The operating neurosurgeon, Dr. Munslow, provided his pre-operative observations and diagnosis, his findings at surgery, his post-operative diagnosis, and his post-operative observations. Dr. Lampert, the neurologist, provided the history related to him by the patient, Perales' complaints, the physical examination and neurologic tests, and his professional impressions and recommendations. Dr. Langston, the orthopedist, did the same post-operatively, and described the orthopedic tests and *404 neurologic examination he performed, the results and his impressions and prognosis. Dr. Mattson, who did
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
results and his impressions and prognosis. Dr. Mattson, who did the post-operative electromyography, described the results of that test, and his impressions. And Dr. Bailey, the psychiatrist, related the history, the patient's complaints, and the psychiatric diagnosis that emerged from the typical psychiatric examination. These are routine, standard, and unbiased medical reports by physician specialists concerning a subject whom they had seen. That the reports were adverse to Perales' claim is not in itself bias or an indication of nonprobative character. 4. The reports present the impressive range of examination to which Perales was subjected. A specialist in neurosurgery, one in neurology, one in psychiatry, one in orthopedics, and one in physical medicine and rehabilitation add up to definitive opinion in five medical specialties, all somewhat related, but different in their emphases. It is fair to say that the claimant received professional examination and opinion on a scale beyond the reach of most persons and that this case reveals a patient and careful endeavor by the state agency and the examiner to ascertain the truth. 5. So far as we can detect, there is no inconsistency whatsoever in the reports of the five specialists. Yet each result was reached by independent examination in the writer's field of specialized training. 6. Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR 404.926 to request subpoenas for the physicians. The five-day period specified by the regulation for the issuance of the subpoenas surely afforded no real obstacle to this, for he was notified that the documentary evidence on file was available for examination before the hearing and, further, a supplemental *405 hearing could be requested. In fact, in this very case there was a supplemental hearing more than two and a half months after the initial hearings. This inaction on the claimant's part supports the Court of Appeals' view, -51, that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination. 7. Courts have recognized the reliability and probative worth of written medical reports even in formal trials and, while acknowledging their hearsay character, have admitted them as an exception to the hearsay rule. Notable is Judge Parker's well-known ruling in the warrisk insurance case of which deserves quotation here, but which, because of its length, we do not reproduce. The Second Circuit has made a like ruling in and in so doing, relied on the Business Records Act, 28 U.S. C. 1732.
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
relied on the Business Records Act, 28 U.S. C. 1732. 8. Past treatment by reviewing courts of written medical reports in social security disability cases is revealing. Until the decision in this case, the courts of appeals, including the Fifth Circuit, with only an occasional criticism of the medical report practice,[8] uniformly recognized reliability and probative value in such reports. The courts have reviewed administrative determinations, and upheld many adverse ones, where the only supporting evidence has been reports of this kind, buttressed sometimes, but often not, by testimony of a medical adviser such as Dr. Leavitt.[9] In these cases admissibility was *406 not contested, but the decisions do demonstrate traditional and ready acceptance of the written medical report in social security disability cases. 9. There is an additional and pragmatic factor which, although not controlling, deserves mention. This is what Chief Judge Brown has described as "[t]he sheer magnitude of that administrative burden," and the resulting necessity for written reports without "elaboration through the traditional facility of oral testimony." With over 20,000 disability claim hearings annually, the cost of providing live medical testimony at those hearings, where need has not been demonstrated by a request for a subpoena, over and above the cost of the examinations requested by hearing examiners, would be a substantial drain on the trust fund and on the energy of physicians already in short supply. VI 1. Perales relies heavily on the Court's holding and statements in particularly the comment that due process requires notice "and an effective opportunity to defend by confronting any adverse witnesses" -268. however, *407 had to do with termination of AFDC benefits without prior notice. It also concerned a situation, the Court said, "where credibility and veracity are at issue, as they must be in many termination proceedings." The Perales proceeding is not the same. We are not concerned with termination of disability benefits once granted. Neither are we concerned with a change of status without notice. Notice was given to claimant Perales. The physicians' reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that the claimant asserts he has not enjoyed. Further, the specter of questionable credibility and veracity is not present; there is professional disagreement with the medical conclusions, to be sure, but there is no attack here upon the doctors' credibility or veracity. affords little comfort to the claimant. 2. Perales also, as the Court of Appeals 416 F. 2d, at 1251, would describe
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
Court of Appeals 416 F. 2d, at 1251, would describe the medical reports in question as "mere uncorroborated hearsay" and would relate this to Mr. Chief Justice Hughes' sentence in Consolidated Edison : "Mere uncorroborated hearsay or rumor does not constitute substantial evidence." Although the reports are hearsay in the technical sense, because their content is not produced live before the hearing examiner, we feel that the claimant and the Court of Appeals read too much into the single sentence from Consolidated Edison. The contrast the Chief Justice was drawing, at the very page cited, was not with material that would be deemed formally inadmissible in judicial proceedings but with material "without a basis in evidence having rational probative force." This was not a blanket rejection by the Court of administrative *408 reliance on hearsay irrespective of reliability and probative value. The opposite was the case. 3. The claimant, the District Court, and the Court of Appeals also criticize the use of Dr. Leavitt as a medical 412 F. 2d, at 53-54. See also Inasmuch as medical advisers are used in approximately 13% of disability claim hearings, comment as to this practice is indicated. We see nothing "reprehensible" in the practice, as the claimant would describe it. The trial examiner is a layman; the medical adviser is a board-certified specialist. He is used primarily in complex cases for explanation of medical problems in terms understandable to the layman-examiner. He is a neutral This particular record discloses that Dr. Leavitt explained the technique and significance of electromyography. He did offer his own opinion on the claimant's condition. That opinion, however, did not differ from the medical reports. Dr. Leavitt did not vouch for the accuracy of the facts assumed in the reports. No one understood otherwise. See We see nothing unconstitutional or improper in the medical adviser concept and in the presence of Dr. Leavitt in this administrative hearing. 4. Finally, the claimant complains of the system of processing disability claims. He suggests, and is joined in this by the briefs of amici, that the Administrative Procedure Act, rather than the Social Security Act, governs the processing of claims and specifically provides for cross-examination, 5 U.S. C. 556 (d) (1964 ed., Supp. V). The claimant goes on to assert that in any event the hearing procedure is invalid on due process grounds. He says that the hearing examiner has the responsibility for gathering the evidence and "to make the *409 Government's case as strong as possible"; that naturally he leans toward a decision in favor of the evidence he has gathered;
|
Justice Blackmun
| 1,971 | 11 |
majority
|
Richardson v. Perales
|
https://www.courtlistener.com/opinion/108333/richardson-v-perales/
|
a decision in favor of the evidence he has gathered; that justice must satisfy the appearance of justice, citing and In re Murchison, ; and that an "independent hearing examiner such as in the" Longshoremen's and Harbor Workers' Compensation Act should be provided. We need not decide whether the APA has general application to social security disability claims, for the social security administrative procedure does not vary from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act. See Final Report of the Attorney General's Committee on Administrative Procedure, contained in Administrative Procedure in Government Agencies, S. Doc. No. 8, 77th Cong., 1st Sess., 157 (1941); see also the remarks of Senator McCarran, chairman of the Judiciary Committee of the Senate, 92 Cong. Rec. 2155. The cited 556 (d) provides that any documentary evidence "may be received" subject to the exclusion of the irrelevant, the immaterial, and the unduly repetitious. It further provides that a "party is entitled to present his case or defense by oral or documentary evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts" and in "determining claims for money or benefits an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form." These provisions conform, and are consistent with, rather than differ from or supersede, the authority given the Secretary by the Social Security Act's 205 (a) and (b) "to establish procedures," and "to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in *410 order to establish the right to benefits," and to receive evidence "even though inadmissible under rules of evidence applicable to court procedure." Hearsay, under either Act, is thus admissible up to the point of relevancy. The matter comes down to the question of the procedure's integrity and fundamental fairness. We see nothing that works in derogation of that integrity and of that fairness in the admission of consultants' reports, subject as they are to being material and to the use of the subpoena and consequent cross-examination. This precisely fits the statutorily prescribed "cross-examination as may be required for a full and true disclosure of the facts." That is the standard. It is clear and workable and does not fall short of procedural due process. Neither are we persuaded by the advocate-judge-multiple-hat suggestion. It assumes too much and would bring down too many procedures designed, and working well, for
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to deatheven though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence. Even if I accepted the reasoning of which I do not, see I would conclude that the complete *516 absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. I Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose.[1] State legislatures' assignments of sentencing authority exemplify the distinction. In every State except Oklahoma, the trial judge rather than the jury is responsible for sentencing in noncapital cases. The opposite consensus, however, prevails in capital cases. In 33 of the 37 States that authorize capital punishment, the jury participates in the sentencing decision. In 29 of those States, the jury's decision is final; in the other 4Alabama, Delaware, and Indianathe judge has the power to override the jury's decision. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, Thus, 33 of the 37 state legislatures that have enacted death penalty statutes have given the jury sentencing responsibilities that differ from the prevailing view of the jury's role in noncapital cases. The Federal Government also provides for jury sentencing in capital cases.[2] These legislative decisions reflect the same judgment expressed in England in 1953 after a 4-year study by the Royal Commission on Capital Punishment: "The question whether there are grounds for relieving the prisoner from the liability to be sentenced to death *517 is a question of quite a different order from the question whether he should serve a shorter or a longer term of imprisonment, and involves much deeper moral and social issues. The lesson of history is that, when a criminal offence is punishable by death, in practice juries will not confine their attention to the issue of guilt and ignore the sentence which conviction entails. In the past, British juries, by perverse verdicts and by petitions, did at leastas much as the campaigns of the reformers to bring the law into conformity with the developing moral conceptions of the community, especially in the field of capital punishment. It may well be argued that the men and women of the jury may be regarded as a microcosm of
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
of the jury may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment, and that there could therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Royal Commission on Capital Punishment 1949-1953, Report 200 (1953). In ordinary, noncapital sentencing decisions, judges consider society's interests in rehabilitating the offender, in incapacitating him from committing offenses in the future, and in deterring others from committing similar offenses. In capital sentencing decisions, however, rehabilitation plays no role; incapacitation is largely irrelevant, at least when the alternative of life imprisonment without possibility of parole is available;[3] and the assumption that death provides a greater deterrent than other penalties is unsupported by *518 persuasive evidence.[4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct." ;see Gillers, Deciding Who Dies, A capital sentence expresses the community's judgment that no lesser sanction will provide an adequate response to the defendant's outrageous affront to humanity. A representative cross section of the community should bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. An expression of community outrage carries the legitimacy of law only if it rests on fair and careful consideration, as free as possible from passion or prejudice. Although the public's apparent zeal for legislation authorizing capital punishment might cast doubt on citizens' capacity to apply such legislation fairly, I am convinced that our jury system provides reliable insulation against the passions of the polity. Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors' responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment * that we may fairly presume to reflect the considered view of the community. The Constitution does not permit judges to determine the guilt
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-ordeath sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S.145, 156 As we explained in Duncan: "[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official powera reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher officeor who merely wish to remain judgesmust constantly profess their fealty to the death penalty.[5] Alabama *520 trial judges face partisan election every six years. 7 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III. II In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight. If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S. 5; The 430, 444-446 (1981). Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments *521 that
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
judge with exactly the same evidence and arguments *521 that the jury rejected. The defendant's life is twice put in jeopardy, once before the jury and again in the repeat performance before a different, and likely less sympathetic, decisionmaker. A scheme that we assumed would "provid[e] capital defendants with more, rather than less, judicial protection,"[6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo sentencing hearings. Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case,[7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared.[8] The Court acknowledges this "ostensibly surprising" *522 fact, ante, at 513, but dismisses it as inconclusive, because "[w]e do not know how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice," This attempt to shrug off the reality of Alabama capital sentencing misses the point. Perhaps Alabama judges would be even more severe, and their sentences even more frequently inconsistent with the community's sense of justice, if Alabama provided for no jury verdicts at all. But the proper frame of reference is not a sentencing scheme with no jury; rather, it is a sentencing scheme with no judgethe scheme maintained by 29 of 37 States with capital punishment. In that comparison, the fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation is conclusive indeed. Death sentences imposed by judges, especially against jury recommendations, sever the critical "link between contemporary community values and the penal system." Witherspoon, 391 U. S., at n. 15. They result in the execution of defendants whom the community would spare. Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that "sharing in the administration of justice is a phase of civic responsibility." Overrides also sacrifice the legitimacy of jury verdicts, at potentially great cost. Whereas the public presumes that a death sentence imposed by a jury reflects the community's judgment that death is the appropriate response to the defendant's crime, the same presumption does not attach to a lone government *523 official's decree. Indeed, government-sanctioned executions unsupported by judgments of a fair cross
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
Indeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself and unwittingly increase tolerance of killing.[9] As Justice Brandeis reminded us, "Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious." Unless the imposition of the death penalty consistently rests on the most scrupulous regard for fair procedure and the application of accepted community standards, it may well teach a lesson that aggravates the very dangers it was intended to deter. *524 III If the Court correctly held in that the Constitution's concerns with regularity and fairness do not bar judges from imposing death sentences over contrary jury verdicts, one would at least expect the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that such schemes maintain strict standards to regularize and constrain the judge's discretion. The Court today refuses to impose any standard, holding that to do so would be "micro management." Ante, at 512. But this case involves far more than a mundane administrative detail. Alabama stands alone among the States in its refusal to constrain its judges' power to condemn defendants over contrary jury verdicts. The statute upheld in as interpreted by the Supreme Court, requires the prosecutor to satisfy a more stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting the death sentence are "so clear and convincing that virtually no reasonable person could differ." If that standard is satisfied, a judge may rationally presume that the jury's verdict did not fairly reflect the judgment of the community. Delaware and Indiana impose similar requirements for overrides. See ; We have repeatedly cited the Tedder standard with approval, suggesting that the Constitution requires such a constraint on a jury override provision. See ; -; Proffitt v. Today the Court dismisses those statements. After Justice Blackmun stated in his opinion for the Court in that "[w]e are satisfied that the Supreme Court takes [Tedder] seriously *525 and has not hesitated to reverse a trial court if it derogates the jury's role," he added, as the majority notes, that "[o]ur responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." The majority reads this second statement to mean that "the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice." Ante,
|
Justice Stevens
| 1,995 | 16 |
dissenting
|
Harris v. Alabama
|
https://www.courtlistener.com/opinion/117899/harris-v-alabama/
|
a State chooses to place upon the jury's advice." Ante, at 511. That reading is overly ambitious at best. The question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Court declined to upset the result in the "particular case" before it based on the way the Supreme Court had applied Tedder in that case. It did not announce that it would have reached the same result had abjured Tedder entirely; rather, it appears to have made Tedder `s role in the scheme a necessary consideration in its evaluation of overrides. The Court's reading of Justice Blackmun's opinion in is tenable, but a more likely reading is that his opinion meant to echo our previous suggestions that a jury override scheme is unconstitutional without Tedder. I would follow those suggestions and recognize Tedder as a constitutional imperative. As I have explained, an unfettered judicial override of a jury verdict for life imprisonment cannot be taken to represent the judgment of the community. A penalty that fails to reflect the community's judgment that death is the appropriate sentence constitutes cruel and unusual punishment under our reasoning in Remarkably, the Court attempts to bolster its holding by citing our reversal of a death sentence for error before the advisory jury. Ante, at 512-513, citing Espinosa v. The Court forgets that the difference between and Alabama is precisely what is at stake in this case. The Constitution compelled Espinosa for the *526 same ultimate reason it compels Tedder: The community's undistorted judgment must decide a capital defendant's fate.[10] Proper attention to Espinosa would lead the Court to reject the conclusion it reaches today. In reaching its result the Court also fails to consider our longstanding principle that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." The Court held that the rejection of capital jury sentencing by all but seven States, and of capital jury overrides by all but (at that time) three, did not demonstrate an "evolving standard" disfavoring overrides. -464. Surely, however, the rejection of standardless overrides by every State in the Union but Alabama is a different matter. Cf. Enmund v. The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring.
|
per_curiam
| 1,977 | 200 |
per_curiam
|
Costello v. Wainwright
|
https://www.courtlistener.com/opinion/109620/costello-v-wainwright/
|
The motion to strike the brief of the United States as amicus curiae is denied. Petitioners in this case attacked the overcrowding in Florida's prisons as violative of the Cruel and Unusual Punishments Clause of the Eighth Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court's decision on the ground that only a three-judge court convened in accordance with 28 U.S. C. 2281 could order such relief. *326 On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See ; ; Morales v. Turman, ante, p. 322. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system's unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional. We cannot agree. The applicability of 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate. Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U.S. C. 1291), the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as unguided by "bedrock principle," tradition, or our case law. See post, at 375-378, 378-380. Margaret McIntyre's case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment jurisprudence. In for a calf is not always in for a cow. The Court's decision finds unnecessary, over intrusive, and inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do not thereby hold that the State may not in other, larger circumstances require the speaker to disclose its interest by disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the Court recognizes that a State's interest in protecting an election process "might justify a more limited identification requirement." Ante, at 353. But the Court has convincingly explained why Ohio lacks "cause for inhibiting the leaf letting at issue here." Justice Thomas, concurring in the judgment. I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. ง 3599.09(A) (1988), is inconsistent with the First Amendment. I would apply, however, a different *359 methodology to this case. Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout American history, or what the "value" of anonymous speech might be, we should determine whether the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leaf letting. I believe that it d I The First Amendment states that the government "shall make no law abridging the freedom of speech, or of the press." U. S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now." South We have long recognized that the meaning of the Constitution "must necessarily depend on the words of the constitution [and] the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions in the several states." Rhode See also We should seek the original understanding when we interpret the Speech and Press Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers did not discuss the precise question at issue, we have
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
did not discuss the precise question at issue, we have turned to "what history reveals was the contemporaneous understanding of [the Establishment Clause's] guarantees." "[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers." School Dist. of Abington ; see also *360 II Unfortunately, we have no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must focus on the practices and beliefs held by the Founders concerning anonymous political articles and pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the freedom of the press. When the Framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world. Instead, they employed the term "the press" to refer to the many independent printers who circulated small newspapers or published writers' pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980); L. Levy, Emergence of a Free Press (1985); B. Bailyn, The Ideological Origins of the American Revolution (1967). "It was in this formโas pamphletsโthat much of the most important and characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American Revolution 3 (1965). This practice continued during the struggle for ratification. See, e. g., Pamphlets on the Constitution of the United States (P. Ford ed. 1888). Regardless of whether one designates the right involved here as one of press or one of speech, however, it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing. There is little doubt that the Framers engaged in anonymous political writing. The essays in the Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they forbade its prohibition by the government. See post, at 373 *361 In this case, however, the historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of the press." For example, the earliest and most famous American experience with freedom of the press, the 1735 Zenger trial, centered around anonymous
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
of the press, the 1735 Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter Zenger, who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19 (S. Katz ed. 1972). Although the case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind. During the Revolutionary and Ratification periods, the Framers' understanding of the relationship between anonymity and freedom of the press became more explicit. In 1779, for example, the Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the Members of Congress for causing inflation throughout the States and for engaging in embezzelment and fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141, n. 1 (G. Gawalt & R. Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before Congress to answer questions concerning Leonidas. Several Members of Congress then rose to oppose Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia rose, quoted from *362 the offending article with approval, and then finished with a declaration that "[w]hen the liberty of the Press shall be restrained the liberties of the People will be at an end." Henry Laurens, Notes of Debates, July 3, 1779, at 139. Supporting Smith, John Penn of North Carolina argued that the writer "no doubt had good designs, " and that "[t]he liberty of the Press ought not to be restrained." In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to Gerry's motion. at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45 Journalism Q. 445, 451 (1968). At least one of the state legislatures shared Congress' view that the freedom of the press protected anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to punish the author of a satirical attack on the
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
to punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce the crime of seditious libel, the State Legislative Council ordered Isaac Collinsโthe printer and editor of the newspaper in which the article had appearedโto reveal the author's identity. Refusing, Collins declared: "`Were I to comply I conceive I should betray the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.' " at 96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as it voted to support the editor and publisher by frustrating the council's orders. at 95. By 1784, the same Governor of New Jersey, William Livingston, was at work writing anonymous articles that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym "Scipio," *363 Livingston wrote several articles attacking the legislature's failure to lower taxes, and he accused a state officer of stealing or losing state funds during the British invasion of New Jersey. at 107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending "the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the guardian for anonymous political writing. "I hope [Tucker] is not seriously bent upon a total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country, convey thro' the press his sentiments on publick grievances. without being obliged to send a certified copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784, The New-Jersey Gazette. To be sure, there was some controversy among newspaper editors over publishing anonymous articles and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself, expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by "fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
Independent Chronicle, Oct. 4, 1787, in 13 Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He called upon printers to refrain from publishing when the author "chooses to remain concealed." Benjamin Russell, the editor of the prominent Federalist newspaper the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces unless the *364 author provided his identity to be "handed to the publick, if required." Massachusetts Centinel, Oct. 10, 1787, A few days later, the Massachusetts Gazette announced that it would emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to leave his name with the printer, so that anyone who wished to know his identity could be informed, "appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen, Massachusetts Gazette, Oct. 16, 1787, Federalists expressed similar thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787, ; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787, Ordinarily, the fact that some founding-era editors as a matter of policy decided not to publish anonymous articles would seem to shed little light upon what the Framers thought the government could do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right to author anonymous political articles and pamphlets.[1] That most other Americans shared this understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on the liberty of the press. Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the "Citizen" piece that had run in the Massachusetts Gazette. at *365 318-320.[2] In response, one of the leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy: "What can be the views of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and free investigation of this important system in the usual way?" Letters From the Federal Farmer No. 5, Oct. 13, 1787, in 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for undermining the freedom of the press. "In this desperate situation of affairs the friends of this despotic scheme of government, were driven to the last and only alternative from which there
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
driven to the last and only alternative from which there was any probability of success; namely, the abolition of the freedom of the Press. " Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, 3 at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent regulation of the press, how things are to be carried on after the adoption of the new constitution." at 103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of the people will in a short time be destroyed." at 104. Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New York, one writer exclaimed that the Federalist effort to suppress anonymity *366 would "reverse the important doctrine of the freedom of the press, " whose "truth" was "universally acknowledged." Detector, New York Journal, Oct. 25, 1787, in 13 Documentary History 318. "Detector" proceeded to proclaim that Russell's policy was "the introduction of this first trait of slavery into your country!" Responding to the Federalist editorial policy, a Rhode Island AntiFederalist wrote: "The Liberty of the Press, or the Liberty which every Person in the United States at present enjoys. is a Privilege of infinite Importance for which we have fought and bled," and that the attempt by "our aristocratical Gentry, to have every Person's Name published who should write against the proposed Federal Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8, 1787, -321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to undermine a "freedom and independence of sentiments " which "should never be checked in a free country" and was "so essential to the existance of free Governments." at 313. The controversy over Federalist attempts to prohibit anonymous political speech is significant for several reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third, and
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
they would fully exercise upon the Constitution's ratification. Third, and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted the nonanonymity policy, nor that of *367 any city or State aside from Russell's Massachusetts Centinel and the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily' " reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had suppressed freedom of the press "`had not any foundation in truth.' " 13 Documentary History 313-314. Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist writers when requested. When Federalist attempts to ban anonymity are followed by a sharp, widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the freedom of the press included the right to publish without revealing the author's name. III The historical record is not as complete or as full as I would desire. For example, there is no evidence that, after the adoption of the First Amendment, the Federal Government attempted to require writers to attach their names to political documents. Nor do we have any indication that the federal courts of the early Republic would have squashed such an effort as a violation of the First Amendment. The understanding described above, however, when viewed in light of the Framers' universal practice of publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such activity was firmly part of the freedom of the press. It is only an innovation of modern times that has permitted the regulation of anonymous speech. The large quantity of newspapers and pamphlets the Framers produced during the various crises of their generation show the remarkable extent to which the Framers relied upon anonymity. During the break with Great Britain, the *368 revolutionaries employed pseudonyms both to conceal their identity from Crown authorities and to impart a message. Often, writers would choose names to signal their point of view or to invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt descriptive names such as "Common Sense," a "Farmer," or "A True Patriot," or historical ones such as "Cato"
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
or "A True Patriot," or historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or "Mucius Scaevola." at xiiโxiii. The practice was even more prevalent during the great outpouring of political argument and commentary that accompanied the ratification of the Constitution. Besides "Publius," prominent Federalists signed their articles and pamphlets with names such as "An American Citizen," "Marcus," "A Landholder," "Americanus"; AntiFederalists replied with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2 Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear to have been signed by their true authors, and they may have had special reasons to do so.[3] If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one might infer that the custom of anonymous political speech arose only in response to the unusual conditions of the 1776-1787 period. *369 After all, the Revolution and the Ratification were not "elections," per se, either for candidates or for discrete issues. Records from the first federal elections indicate, however, that anonymous political pamphlets and newspaper articles remained the favorite media for expressing views on candidates. In Pennsylvania, for example, writers for or against the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1 Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker eds. 1976). This appears to have been the practice in allof the major States of which we have substantial records today. See 1 at 446-464 (Massachusetts); 2 at 108-122, 175โ 229 (Maryland); 2 at 387-397 (Virginia); 3 at 204-216, 436-493 (New York). It seems that actual names were used rarely, and usually only by candidates who wanted to explain their positions to the electorate. The use of anonymous writing extended to issues as well as candidates. The ratification of the Constitution was not the only issue discussed via anonymous writings in the press. James Madison and Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus" debates over President Washington's declaration of neutrality in the war between the British and French. See Hamilton, Pacificus No. 1, June 29, 1793, in 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison,
|
Justice Ginsburg
| 1,995 | 5 |
concurring
|
McIntyre v. Ohio Elections Comm'n
|
https://www.courtlistener.com/opinion/117921/mcintyre-v-ohio-elections-commn/
|
Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison, Helvidius No. 1, Aug. 24, 1793, in 15 Papers of James Madison 66-73 (T. Mason, R. Rutland, J. Sisson eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See generally J. Smith, Freedom's Fetters (1956). *370 IV This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to seek the original understanding of the First Amendment, and instead attempts to answer the question in this case by resorting to three approaches. First, the majority recalls the historical practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante, at 341, and n. 4, 342-343, and n. 6, 357. Second, it finds that anonymous speech has an expressive value both to the speaker and to society that outweighs public interest in disclosure. Third, it finds that ง 3599.09(A) cannot survive strict scrutiny because it is a "content-based" restriction on speech. I cannot join the majority's analysis because it deviates from our settled approach to interpreting the Constitution and because it superimposes its modern theories concerning expression upon the constitutional text. Whether "great works of literature"โby Voltaire or George Eliot have been published anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly, whether certain types of expression have "value" today has little significance; what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection of the Bill of Rights. And although the majority faithfully follows our approach to "content-based" speech regulations, we need not undertake this analysis when the original understanding provides the answer. While, like Justice Scalia, I am loath to overturn a century of practice shared by almost all of the States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when *371 interpreting the Speech and Press Clauses. After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion. Because
|
Justice Stewart
| 1,976 | 18 |
majority
|
Francis v. Henderson
|
https://www.courtlistener.com/opinion/109439/francis-v-henderson/
|
In the Court held that a federal prisoner who had failed to make a timely challenge to the allegedly unconstitutional composition of the grand jury that indicted him could not after his conviction attack the grand jury's composition in an action for collateral relief under 28 U.S. C. 2255. The question in this case is whether a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him could after his conviction bring that challenge in a federal habeas corpus proceeding. The petitioner, Abraham Francis, was brought to trial in a Louisiana court in 1965 upon an indictment for felony murder. He was represented by counsel provided by the State. The Louisiana law then in force clearly required that any objection by a defendant to the composition of the grand jury that had indicted him had to be made in advance of his trial. Otherwise, the law provided, "all such objections shall be considered as waived and shall not afterwards be urged or heard."[1] No such *538 objection in any form was made by or on behalf of Francis. At the ensuing trial the jury found Francis guilty, and he was sentenced to life imprisonment. He did not appeal the conviction, but in 1971 he sought collateral relief from a state court on the ground, inter alia, that Negroes had been excluded from the grand jury that had indicted him. The court held that Francis had waived this claim when he failed to raise it before trial as required by state law, and it accordingly denied relief. Francis thereafter sought a writ of habeas corpus in the United States District Court for the Eastern District of Louisiana. The District Court granted the writ on the ground that Negroes had been impermissibly excluded from the grand jury that had returned the indictment.[2] The Court of Appeals reversed the judgment, holding that in the light of this Court's decision in the case, "the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice." Accordingly, the appellate court remanded the case to the District Court. We granted certiorari in order to consider a recurring and unresolved question of federal law.[3] There can be no question of a federal district court's power to entertain an application for a writ of habeas corpus in a case such as this. 28 U.S. C. 2241, 2254. The issue, as in the case, goes rather to the appropriate *539 exercise of that power. This Court has long recognized that in
|
Justice Stewart
| 1,976 | 18 |
majority
|
Francis v. Henderson
|
https://www.courtlistener.com/opinion/109439/francis-v-henderson/
|
of that power. This Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See The question to be decided is whether the circumstances of this case are such as to invoke the application of those considerations and concerns. In the petitioner was indicted by a federal grand jury upon a charge of attempted bank robbery. Federal Rule Crim. Proc. 12 provides that a defendant in a federal criminal case who wants to challenge the constitutional validity of the grand jury that indicted him must do so by motion before trial; otherwise he is deemed to have waived such a challenge, except for "cause shown."[4] made no such motion. Almost three years after his trial and conviction, brought a proceeding under 28 U.S. C. 2255 to set aside his conviction upon the ground of unconstitutional discrimination in the composition of the grand jury that had returned the indictment against him. In holding that 2255 relief should under these circumstances be denied, the Court said: "We think it inconceivable that Congress, having in the criminal proceeding foreclosed the raising of a claim such as this after the commencement of trial in the absence of a showing of `cause' for relief from waiver, nonetheless intended to perversely negate the Rule's purpose by permitting an entirely different but much more liberal requirement of waiver in federal habeas proceedings. We believe that the necessary effect of the congressional adoption of Rule 12 (b) (2) is to provide that a claim *540 once waived pursuant to that Rule may not later be resurrected, either in the criminal proceedings or in federal habeas, in the absence of the showing of `cause' which that Rule requires. We therefore hold that the waiver standard expressed in Rule 12 (b) (2) governs an untimely claim of grand jury discrimination, not only during the criminal proceeding, but also later on collateral review." See also Shotwell Mfg. As the Court in pointed out, a time requirement such as that contained in Rule 12 serves interests far more significant than mere judicial convenience: "The waiver provisions of Rule 12 (b) (2) are operative only with respect to claims of defects in the institution of criminal proceedings. If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial. If defendants were allowed to flout its
|
Justice Stewart
| 1,976 | 18 |
majority
|
Francis v. Henderson
|
https://www.courtlistener.com/opinion/109439/francis-v-henderson/
|
of a trial. If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial. Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of an acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult." The Louisiana time limitation applicable in the present case was obviously designed to serve precisely these same important purposes, as the Court specifically recognized more than 20 years ago in a case involving this *541 very Louisiana law, There the Court said: "It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury." "Not only may the prompt determination of such preliminary matters avoid the necessity of a second trial, but a long delay in its determination, such as here, makes it extremely difficult in this class of case for the State to overcome the prima facie claim which may be established by a defendant. Material witnesses and grand jurors may die or leave the jurisdiction, and memories as to intent or specific practices relating to the selection of a particular grand jury may lose their sharpness. Furthermore, a successful attack on a grand jury that sat several years earlier may affect other convictions based on indictments returned by the same grand jury." at 98 n. 5. If, as held, the federal courts must give effect to these important and legitimate concerns in 2255 proceedings, then surely considerations of comity and federalism require that they give no less effect to the same clear interests when asked to overturn state criminal convictions. Those considerations require that recognition be given "to the legitimate interests of both State and National Governments, and [that] the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always [endeavor] to do so in ways that will not unduly *542 interfere with the legitimate activities of the States." "Plainly the interest in finality is the same with regard to both federal and state prisoners. There is no reason to give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by
|
Justice Stewart
| 1,975 | 18 |
dissenting
|
United States v. Bisceglia
|
https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/
|
The Court today says that it "recogniz[es] that the authority vested in tax collectors may be abused," ante, *153 at 146, but it is nonetheless unable to find any statutory limitation upon that authority. The only "protection" from abuse that Congress has provided, it says, is "placing the federal courts between the Government and the person summoned," ante, at 151. But that, of course, is no protection at all, unless the federal courts are provided with a measurable standard when asked to enforce a summons. I agree with the Court of Appeals that Congress has provided such a standard, and that the standard was not met in this case. Accordingly, I respectfully dissent from the and judgment of the Court. Congress has carefully restricted the summons power to certain rather precisely delineated purposes: "ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability." 26 U.S. C. This provision speaks in the singularreferring to "the correctness of any return" and to "the liability of any person." The delineated purposes are jointly denominated an "inquiry" concerning "the person liable for tax or required to perform the act," and the summons is designed to facilitate the "[e]xamination of books and witnesses" which "may be relevant or material to such inquiry." 26 U.S. C. (1), (2), and (3). This language indicates unmistakably that the summons power is a tool for the investigation of particular taxpayers. By contrast, the general duties of the IRS are vastly broader than its summons authority. For instance, 7601 mandates a "[c]anvass of districts for taxable persons and objects." Unlike the canvassing provision *154 speaks broadly and in the plural, instructing Treasury Department officials. "to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed." (Emphasis added.) Virtually all "persons" or "objects" in this country "may," of course, have federal tax problems. Every day the economy generates thousands of sales, loans, gifts, purchases, leases, deposits, mergers, wills, and the like whichbecause of their size or complexitysuggest the possibility of tax problems for somebody. Our economy is "tax relevant" in almost every detail. Accordingly, if a summons could issue
|
Justice Stewart
| 1,975 | 18 |
dissenting
|
United States v. Bisceglia
|
https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/
|
in almost every detail. Accordingly, if a summons could issue for any material conceivably relevant to "taxation"that is, relevant to the general duties of the IRSthe Service could use the summons power as a broad research device. The Service could use that power methodically to force disclosure of whole categories of transactions and closely monitor the operations of myriad segments of the economy on the theory that the information thereby accumulated might facilitate the assessment and collection of some kind of a federal tax from somebody. Cf. United And the Court's today seems to authorize exactly that. But Congress has provided otherwise. The Congress has recognized that information concerning certain classes of transactions is of peculiar importance to the sound administration of the tax system, but the legislative solution has not been the conferral of a limitless summons power. Instead, various special-purpose statutes have been written to require the reporting or disclosure of particular kinds of transactions. E. g., 26 U.S. C. 6049, *155 6051-6053, 31 U.S. C. 1081-1083, 1101, and 1121-1122, and 31 U.S. C. 1141-1143 (1970 ed., Supp. III). Meanwhile, the scope of the summons power itself has been kept narrow. Congress has never made that power coextensive with the Service's broad and general canvassing duties set out in 7601. Instead, the summons power has always been restricted to the particular purposes of individual investigation, delineated in[1] Thus, a financial or economic transaction is not subject to disclosure through summons merely because it is large or unusual or generally "tax relevant"but only when the summoned information is reasonably pertinent to an ongoing investigation of somebody's tax status. This restriction checks possible abuses of the summons power in two rather obvious ways. First, it guards against an *156 overbroad summons by allowing the enforcing court to prune away those demands which are not relevant to the particular, ongoing investigation. See, e. g., First Nat. Bank of Second, the restriction altogether prohibits a summons which is wholly unconnected with such an investigation. The Court today completely obliterates the historic distinction between the general duties of the IRS, summarized in 7601, and the limited purposes for which a summons may issue, specified in Relying heavily on 7601, and noting that the IRS "has a legitimate interest in large or unusual financial transactions, especially those involving cash," ante, at 149, the Court approves enforcement of a summons having no investigative predicate. The sole premise for this summons was the Service's theory that the deposit of old wornout $100 bills was a sufficiently unusual and interesting transaction to justify compulsory disclosure of the
|
Justice Stewart
| 1,975 | 18 |
dissenting
|
United States v. Bisceglia
|
https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/
|
unusual and interesting transaction to justify compulsory disclosure of the identities of all the large-amount depositors at the respondent's bank over a one-month period.[2] That the summons was not incident to an ongoing, particularized investigation, but was merely a shot in the dark to see if one might be warranted, was freely conceded by the IRS agent who served the summons.[3] *1 The Court's thus approves a breathtaking expansion of the summons power: There are obviously thousands of transactions occurring daily throughout the country which, on their face, suggest the possibility of tax complications for the unknown parties involved. These transactions will now be subject to forced disclosure at the whim of any IRS agent, so long only as he is acting in "good faith." Ante, at 146. This is a sharp and dangerous detour from the settled course of precedent. The decision of the Court of Appeals in this case has been explicitly accepted as sound by the Courts of Appeals of two other Circuits. See United (CA3), and United (CA5), cert. pending, No. 73-1827. No federal court has disagreed with it. The federal courts have always scrutinized with particular care any IRS summons directed to a "third party," i. e., to a party other than the taxpayer under investigation. See, e. g., United ; ; United When, as here, the third-party summons does not identify the party under investigation, a presumption naturally arises that the summons is not genuinely investigative but merely exploratorya device for general research or for the hit-or-miss monitoring of "unusual" transactions. Unless this presumption is rebutted by the Service, the courts have denied enforcement. Thus, the IRS was not permitted to summon from a bank the names and addresses of all beneficiaries of certain *158 types of trust arrangements merely on the theory that these arrangements were unusual in form or size. Nor could the Service force a company to disclose the identity of whole classes of its oil land lessees merely on the theory that oil lessees commonly have tax problems. United See also ; First Nat. Bank of 160 F. 2d, at ; On the other hand, enforcement has been granted where the Service has been able to demonstrate that the John Doe summons was issued incident to an ongoing and particularized investigation. Thus, enforcement was granted of summonses seeking to identify the clients of those tax-return-preparation firms which prior investigation had shown to be less than honest or accurate in the preparation of sample returns. United ; United ; United United Similarly, enforcement was granted of summonses directed to an attorney,
|
Justice Stewart
| 1,975 | 18 |
dissenting
|
United States v. Bisceglia
|
https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/
|
Similarly, enforcement was granted of summonses directed to an attorney, and his bank, seeking to identify the client for whom the attorney had mailed to the IRS a large, anonymous check, purporting to satisfy an outstanding tax deficiency of the client. ; Like the prior investigative work in the tax-return-preparer cases, the receipt of the mysterious check established the predicate of a particularized investigation which was necessary, under to the enforcement of a summons. In each case, the Service had already proceeded to the point where the unknown individual's tax liability had become a reasonable possibility, rather than a matter of sheer speculation. Today's decision shatters this long line of precedent. *159 For this summons, there was absolutely no investigative predicate. The sole indication of this John Doe's tax liability was the unusual character of the deposit transaction itself. Any private economic transaction is now fair game for forced disclosure, if any IRS agent happens in good faith to want it disclosed. This new rule simply disregards the language of and the body of established case law construing it. The Court's attempt to justify this extraordinary departure from established law is hardly persuasive. The Court first notes that a witness may not refuse testimony to a grand jury merely because the grand jury has not yet specified the "identity of the offender," ante, at 147, quoting This is true but irrelevant. The IRS is not a grand jury. It is a creature not of the Constitution but of legislation and is thus peculiarly subject to legislative constraints. See In re Groban, (Black, J., dissenting). It is true that the Court drew an analogy between an IRS summons and a grand jury subpoena in United but this was merely to emphasize that an IRS summons does not require the support of "probable cause" to suspect tax fraud when the summons is issued incident to an ongoing, individualized investigation of an identified party. A major premise of Powell was that an extrastatutory "probable cause" requirement was unnecessary in view of the "legitimate purpose" requirements already specified in -. The Court next suggests that this expansion of the summons power is innocuous, at least on the facts of this case, because the Bank Secrecy Act of 1970[4] itself compels *160 banks to disclose the identity of certain cash depositors. Ante, at 149-150. Aside from the fact that the summons at issue here forces disclosure of some deposits not covered by the Act and its attendant regulations,[5] the argument has a more basic flaw. If the summons authority of allows preinvestigative inquiry into any
|
Justice Stewart
| 1,975 | 18 |
dissenting
|
United States v. Bisceglia
|
https://www.courtlistener.com/opinion/109190/united-states-v-bisceglia/
|
If the summons authority of allows preinvestigative inquiry into any large or unusual bank deposit, the 1970 Act was largely redundant. The IRS could have saved Congress months of hearings and debates by simply directing summonses on a regular basis to the Nation's banks, demanding the identities of their large cash depositors. In California Bankers we gave extended consideration to the complex constitutional issues raised by the 1970 Act; some of those issuese. g., whether and to what extent bank depositors have Fourth Amendment and Fifth Amendment rights to the secrecy of their domestic depositswere left unresolved by the Court's -75. If the disclosure requirements in the 1970 Act were already encompassed within the Service's summons power, one must wonder why the Court labored so long and carefully in Shultz. Finally, the Court suggests that respect for the plain language of would "undermine the efficacy of the federal tax system, which seeks to assure that taxpayers pay what Congress has mandated and prevents dishonest persons from escaping taxation and thus shifting heavier burdens to honest taxpayers." Ante, at 146. But the federal courts have applied the strictures of and its predecessors, for many decades without occasioning these *161 dire effects. If such a danger exists, Congress can deal with it. But until Congress changes the provision of it is our duty to apply the statute as it is written. I would affirm the judgment of the Court of Appeals.
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. 202 (g) of the Social Security Act, as amended, 42 U.S. C. 402 (g).[1] Such benefits are payable on the basis of the *638 earnings of a deceased wife and mother covered by the Act, however, only to the minor children and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.[2] A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by 402 (g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees. *639 We noted probable jurisdiction, We affirm. I Appellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 1, 190. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary.[3] Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee.[4] On June 192, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N. J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S. C. 402 (d) (190 ed. and Supp. III),[] and received for Jason $206.90 per month *640 until September 192, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because 402 (g) benefits were available only to women.[6] If he had been a woman, he would *641 have received the same amount as his son as long as he was not working, see 42 U.S. C. 402 (d) (2) and (g) (2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S. C. 403 (b) and (f).[] Appellee filed this suit in February[8] claiming jurisdiction under 28 U.S. C. 1331, on behalf of himself and of all widowers similarly situated.[9] He sought a declaration that 402 (g) is unconstitutional to the extent that men and women are treated differently, an injunction *642 restraining appellant from denying benefits under 402 (g)
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
injunction *642 restraining appellant from denying benefits under 402 (g) solely on the basis of sex, and payment of past benefits commencing with June 192, the month of the original application. Cross motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction,[10] it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought. II The gender-based distinction made by 402 (g) is indistinguishable from that invalidated in Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. explained: "In Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution. [T]he assumption. was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not." A virtually identical "archaic and overbroad" generalization, "not tolerated under the Constitution" underlies the distinction drawn by 402 (g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support.[11] Section 402 (g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to "afford more adequate protection to the family as a unit." H. R. Rep. No. 28, 6th Cong., 1st Sess., (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n. and no benefits *644 whatever were made available to husbands or widowers on the basis of their wives' covered employment.[12] Underlying the 1939 scheme was the principle that "[u]nder a social-insurance plan the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents." H. R. Rep. No. 28, (Emphasis supplied.) It was felt that "[t]he payment of these survivorship benefits and supplements for the wife of an annuitant are in keeping with the principle of social insurance" Thus, the framers of the Act legislated on the "then generally accepted presumption that a man is responsible for the support of his wife and children." D. Hoskins & L. Bixby,
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
of his wife and children." D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p.[13] *64 Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See 416 U.S. 31, 34 n. But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support. Section 402 (g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was in fact dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero, the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men. *646 III Appellant seeks to avoid this conclusion with two related arguments. First, he claims that because social security benefits are not compensation for work done, Congress is not obliged to provide a covered female employee with the same benefits as it provides to a male. Second, he contends that 402 (g) was "reasonably designed to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace," Brief for Appellant 14, and therefore does not contravene the equal protection guarantee. A Appellant relies for the first proposition primarily on
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
guarantee. A Appellant relies for the first proposition primarily on We held in Flemming that the interest of a covered employee in future social security benefits is "noncontractual," because "each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation." Appellant apparently contends that since benefits derived from the social security program do not correlate necessarily with contributions made to the program, a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment. We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors', and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive *64 processes of the country." Final Report of the Advisory Council on Social Security 1 (1938). It is true that social security benefits are not necessarily related directly to tax contributions, since the OASDI system is structured to provide benefits in part according to presumed need.[14] For this reason, Flemming held that the position of a covered employee "cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments." But the fact remains that the statutory right to benefits is directly related to years worked and amount earned by a covered employee,[1] and not to the need of the beneficiaries directly. Since OASDI benefits do depend significantly upon the participation in the work force of a covered employee, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex. *648 B Appellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in 416 U. S., at 3, that a statute "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden" can survive an equal protection attack. See also But the mere recitation of a benign, compensatory purpose is not an automatic shield which
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.[16] Here, it is apparent both from the statutory scheme itself and from the legislative history of 402 (g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather, 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work. That the purpose behind 402 (g) is to provide children *649 deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history. The Advisory Council on Social Security, which developed the 1939 amendments, said explicitly that "[s]uch payments [under 402 (g)] are intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). (Emphasis supplied.) In 191, a new Advisory Council, considering amendments to eliminate the various gender-based distinctions in the OASDI structure, reiterated this understanding: "Present law provides benefits for the mother of young children if she chooses to stay home and care for the children instead of working. In the Council's judgment, it is desirable to allow a woman who is left with the care of the children the choice of whether to stay at home to care for the children or to work." 191 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (hereinafter 191 Reports). (Emphasis supplied.) Indeed, consideration was given in 1939 to extending benefits to all widows regardless of whether or not there were minor children. The proposal was rejected, apparently because it was felt that young widows without children can be expected to work, while middle-aged widows "are likely to have more savings than younger widows and many of them have children who are grown and able to help them." Report of the Social Security Board, H. R. Doc. No. 110, 6th Cong., 1st Sess., -8 (1939). See also Final Report of the Advisory Council on Social Security 31 (1938); on the Social Security Act Amendments
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
Social Security 31 (1938); on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 6th Cong., 1st Sess., 61, 121, 2169-210; H. R. Rep. No. 28, 6th Cong., 1st Sess., 36-3 *60 (1939). Thus, Congress decided not to provide benefits to all widows even though it was recognized that some of them would have serious problems in the job market. Instead, it provided benefits only to those women who had responsibility for minor children, because it believed that they should not be required to work. The whole structure of survivors' benefits conforms to this articulated purpose. Widows without minor children obtain no benefits on the basis of their husband's earnings until they reach age 60 or, in certain instances of disability, age 0. 42 U.S. C. 402 (e) (1) and (). Further, benefits under 402 (g) cease when all children of a beneficiary are no longer eligible for children's benefits.[1] If Congress were concerned with providing women with benefits because of economic discrimination, it would be entirely irrational to except those women who had spent many years at home rearing children, since those women are most likely to be without the skills required to succeed in the job market. See Walker, Sex Discrimination in Government Benefit Programs, 23 Hastings L. J. 2, 28-29 (191); ; Report of the Committee on Social Insurance and Taxes, The President's Commission on the Status of Women 31-32 (1963). Similarly, the Act now provides benefits to a surviving *61 divorced wife who is the parent of a covered employee's child, regardless of how long she was married to the deceased or of whether she or the child was dependent upon the employee for support. 402 (g), 416 (d) (3). Yet, a divorced wife who is not the mother of a child entitled to children's benefits is eligible for benefits only if she meets other eligibility requirements and was married to the covered employee for 20 years. 402 (b) and (e), 416 (d).[18] Once again, this distinction among women is explicable only because Congress was not concerned in 402 (g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work. Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of 402 (g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical
|
Justice Brennan
| 1,975 | 13 |
majority
|
Weinberger v. Wiesenfeld
|
https://www.courtlistener.com/opinion/109218/weinberger-v-wiesenfeld/
|
the sex of the surviving parent. Even in the typical family hypothesized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact *62 that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection." 40 U.S. 64, 61 Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child-care related problems.[19] Stephen Wiesenfeld, for example, found that providing adequate care for his infant son impeded his ability to work, see n. Finally, to the extent that Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not,[20]*63 the statutory structure, independent of the gender-based classification, would deny or reduce benefits to those men who conform to the presumed norm and are not hampered by their child-care responsibilities. Benefits under 402 (g) decrease with increased earnings, see, According to appellant, "the bulk of male workers would receive no benefits in any event," Brief for Appellant 1 n. 11, because they earn too much. Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids. Since the gender-based classification of 402 (g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, "[b]y providing dissimilar treatment for men and women who are similarly situated, the challenged section violates the [Due Process] Clause." 404 U.S. 1, (191). Affirmed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. *64 MR.
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
I would affirm the judgment of the Florida Supreme Court because First Amendment values will not be furthered in any way by application to this case of the fault standards newly drafted and imposed by upon which my *482 Brother REHNQUIST relies, or the fault standards required by upon which my Brother BRENNAN relies; and because, in any event, any requisite fault was properly found below. The jury found on ample evidence that the article published by petitioner Time, about respondent Firestone was false and defamatory. This Court has held, and no one seriously disputes, that, regardless of fault, "there is no constitutional value in false statements of fact." "They belong to that category of utterances which `. are of such slight social value as' " to be worthy of no First Amendment protection. quoting This Court's decisions from New York Times through holding that the Constitution requires a finding of some degree of fault as a precondition to a defamation award, have done so for one reason and one reason alone: unless innocent falsehood is allowed as a defense, some true speech will also be deterred. Thus "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters," e. g., true fact statements. In light of these decisions, the threshold question in the instant case should be whether requiring proof of fault on the part of Time, as a precondition to recovery in this case and thereby possibly interfering with the State's desire to compensate respondent Firestonewill contribute in any way to the goal of protecting "speech that matters." I think it would not. At the time of the defamatory publication in this caseDecember 1967the law clearly authorized liability *483 without fault in defamation cases of the sort involved here.[*] Whatever the chilling effect of that rule of law on publication of "speech that matters" in 1967 might have been, it has already occurred and is now irremediable. The goal of protecting "speech that maters" by announcing rules, as this Court did in and requiring fault as a precondition to a defamation recovery under circumstances such as are involved here, is fully achieved so long as fault is required for cases in which the publication occurred after the dates of those decisions. This is not such a case. Therefore, to require proof of fault in this caseor in any other case predating Gertz and in which a private figure is defamedis to interfere with the State's otherwise legitimate policy of compensating defamation victims without furthering First Amendment goals in any way at all. In
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
furthering First Amendment goals in any way at all. In other areas in which the Court has developed a rule designed not to achieve justice in the case before it but designed to induce socially desirable conduct by some group in the future, the Court has declined to apply the rule to fact situations predating its announcement, e. g., The Court should follow a similar path here. In any event, the judgment of the court below should be affirmed. My Brother REHNQUIST concludes that negligence is sufficient fault, under Gertz, to justify the judgment below, and that a finding of negligence may constitutionally be supplied by the Florida Supreme Court. I agree. Furthermore, the state court referred to by name; noted the "convincing evidence of negligence" in the case; pointed out that a careful examination of the divorce decree would have "clearly demonstrated" that the divorce was not grounded on adultery, as reported by Time, ; and stated flatly: "This is a flagrant example of `journalistic negligence.' " It appears to me that the Florida Supreme Court has made a sufficiently "conscious determination," ante, at 463, of the fact of negligence. If it is Gertz that controls this case and if that decision is to be applied retroactively, I would affirm the judgment. MR. JUSTICE MARSHALL, dissenting. The Court agrees with the Supreme Court of Florida that the "actual malice" standard of New York Times does not apply to this case. Because I consider the respondent, Mary Alice Firestone, to be a "public figure" within the meaning of our prior decisions, ; Curtis Publishing I respectfully dissent. I Mary Alice Firestone was not a person "first brought to public attention by the defamation that is the subject of the lawsuit." On the contrary, she was "prominent among the `400' of *485 Palm Beach society," and an "active [member] of the sporting set," whose activities predictably attracted the attention of a sizable portion of the public. Indeed, Mrs. Firestone's appearances in the press were evidently frequent enough to warrant her subscribing to a press-clipping service. Mrs. Firestone brought suit for separate maintenance, with reason to know of the likely public interest in the proceedings. As the Supreme Court of Florida noted, Mr. and Mrs. Firestone's "marital difficulties were well-known," and the lawsuit became "a veritable cause celebre in social circles across the country." The 17-month trial and related events attracted national news coverage, and elicited no fewer than 43 articles in the Miami Herald and 45 articles in the Palm Beach Post and Palm Beach Times. Far from shunning the publicity,
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
Post and Palm Beach Times. Far from shunning the publicity, Mrs. Firestone held several press conferences in the course of the proceedings. These facts are sufficient to warrant the conclusion that Mary Alice Firestone was a "public figure" for purposes of reports on the judicial proceedings she initiated. In at 352 we noted that an individual can be a public figure for some purposes and a private figure for others. And we found two distinguishing features between public figures and private figures. First, we recognized that public figures have less need for judicial protection because of their greater ability to resort to self-help; "public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy." As the above recital of the facts makes clear. Mrs. Firestone is hardly in a position to suggest that she lacked access to the media for purposes relating to her lawsuit. *486 It may well be that she would have had greater difficulty countering alleged falsehoods in the national press than in the Miami and Palm Beach papers that covered the proceedings so thoroughly. But presumably the audience Mrs. Firestone would have been most interested in reaching could have been reached through the local media. In any event, difficulty in reaching all those who may have read the alleged falsehood surely ought not preclude a finding that Mrs. Firestone was a public figure under Gertz. Gertz set no absolute requirement that an individual be able fully to counter falsehoods through self-help in order to be a public figure. We viewed the availability of the self-help remedy as a relative matter in Gertz, and set it forth as a minor consideration in determining whether an individual is a public figure. The second, "more important," consideration in Gertz was a normative notion that public figures are less deserving of protection than private figures: That although "it may be possible for someone to become a public figure through no purposeful action of his own," generally those classed as public figures have "thrust themselves to the forefront of particular public controversies" and thereby "invite[d] attention and comment." And even if they have not, "the communications media are entitled to act on the assumption that public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them." We must assume that it was by choice that Mrs. Firestone became an active member of the "sporting set"a social group with "especial prominence in the affairs of society," ibid., whose lives
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
"especial prominence in the affairs of society," ibid., whose lives receive constant media attention. Certainly there is nothing in the record to indicate otherwise, and Mrs. Firestone's subscription to a press-clipping service suggests that she was not altogether uninterested *487 in the publicity she received. Having placed herself in a position in which her activities were of interest to a significant segment of the public, Mrs. Firestone chose to initiate a lawsuit for separate maintenance, and most significantly, held several press conferences in the course of that lawsuit. If these actions for some reason fail to establish as a certainly that Mrs. Firestone "voluntarily exposed [herself] to increased risk of injury from defamatory falsehood," surely they are sufficient to entitle the press to act on the assumption that she did. Accordingly, Mrs. Firestone would appear to be a public figure under Gertz. The Court resists this result by concluding that the subject matter of the alleged defamation was not a "public controversy" as that term was used in Gertz. In part, the Court's conclusion rests on what I view as an understatement of the degree to which Mrs. Firestone can be said to have voluntarily acted in a manner that invited public attention. But more fundamentally its conclusion rests on a reading of Gertz that differs from mine. The meaning that the Court attributes to the term "public controversy" used in Gertz resurrects the precise difficulties that I thought Gertz was designed to avoid. It is not enough for the Court that, because of Mrs. Firestone's acquired prominence within a segment of society, her lawsuit had already attracted significant public attention and comment when the Time report was published. According to the Court, the controversy, already of interest to the public, was "not the sort of `public controversy' referred to in Gertz." Ante, at 454. The only explanation I can discern from the Court's opinion is that the controversy was not of the sort deemed relevant to the "affairs of society," ante, at 453, and the public's interest not of the sort deemed "legitimate" or worthy of judicial recognition. *488 If there is one thing that is clear from Gertz, it is that we explicitly rejected the position of the plurality in that the applicability of the New York Times standard depends upon whether the subject matter of a report is a matter of "public or general concern." We explained in Gertz that the test advanced by the plurality "would occasion the difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
decide on an ad hoc basis which publications address issues of `general or public interest' and which do notto determine, in the words of MR. JUSTICE MARSHALL, `what information is relevant to self-government.' v. Metromedia We doubt the wisdom of committing this task to the conscience of judges." Having thus rejected the appropriateness of judicial inquiry into "the legitimacy of interest in a particular event or subject," Gertz obviously did not intend to sanction any such inquiry by its use of the term "public controversy." Yet that is precisely how I understand the Court's opinion to interpret Gertz.[1] *489 If Gertz is to have any meaning at all, the focus of analysis must be on the actions of the individual, and the degree of public attention that had already developed, or that could have been anticipated, before the report in question. Under this approach, the class of public figures must include an individual like Mrs. Firestone, who acquired a social prominence that could be expected to attract public attention, initiated a lawsuit that predictably attracted more public attention, and held press conferences in the course of and in regard to the lawsuit.[2] I would hold that, for purposes of this *490 case, Mrs. Firestone is a public figure, who must demonstrate that the report in question was published with "actual malice"that is, with knowledge that it was false or with reckless disregard of whether it was false or not. II While the foregoing discussion is sufficient to dispose of the case under my reading of the law, two other aspects of the Court's opinion warrant comment. First, the Court appears to reject the contention that a rational interpretation of an ambiguous document is always entitled to some constitutional protection. The Court reads Time, v. Pape, as providing such protection only under the rubric of the New York Times "actual malice" standard. Ante, at 459 n. 4. I disagree. While the precise holding in Pape was that the choice of one of several rational interpretations of an ambiguous document is not enough to create a jury issue of "actual malice," the Court's reasoning suggests that its holding ought not be so confined. In introducing its discussion, the Court noted: "[A] vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like. The question of the `truth' of *491 such an
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
like. The question of the `truth' of *491 such an indirect newspaper report presents rather complicated problems." -286 And in discussing the need for some protection for the publisher attempting to report the gist of a lengthy government document, the Court observed: "Where the document reported on is so ambiguous as this one was, it is hard to imagine a test of `truth' that would not put the publisher virtually at the mercy of the unguided discretion of a jury." Surely the Court's evident concern that publishers be accorded the leeway to offer rational interpretations of ambiguous documents was not restricted to cases in which the New York Times standard is applicable. That concern requires that protection for rational interpretations be accorded under the fault standard contemplated in Gertz. Thus my Brothers POWELL and STEWART, while joining the opinion of the Court, recognize that the rationality of an interpretation of an ambiguous document must figure as a crucial element in any assessment of fault under Gertz. Ante, at 467-469. I agree. The choice of one of several rational interpretations of an ambiguous document, without more, is insufficient to support a finding of fault under Gertz. Finally, assuming that the Court is correct in its assessment of the law in this case, I find the Court's disposition baffling. The Court quotes that portion of the Florida Supreme Court's opinion which, citing Gertz, states in no uncertain terms that Time's report was a "flagrant example of `journalistic negligence.' " But the Court is unwilling to read that statement as a "conscious determination" of fault, and accordingly the Court remands the case for an assessment of fault. *492 Surely the Court cannot be suggesting that the quoted portion of the Supreme Court of Florida's opinion, which contained a citation to Gertz, had no meaning at all. And if it did have meaning, it must have reflected either an intention to find fault or an intention to affirm a finding of fault. It is quite clear that the opinion was not intended to affirm any finding of fault, for as the Court observes there was no finding of fault to affirm. The question of fault had not been submitted to the jury, and the District Court of Appeal had explicitly noted the absence of any proof that Time had been negligent. The absence of any prior finding of fault only reinforces what the Florida Supreme Court's language itself makes clearthat the court was not simply affirming a finding of fault, but making such a finding in the first instance. I therefore agree with my
|
Justice White
| 1,976 | 6 |
second_dissenting
|
Time, Inc. v. Firestone
|
https://www.courtlistener.com/opinion/109388/time-inc-v-firestone/
|
finding in the first instance. I therefore agree with my Brother WHITE that the Supreme Court of Florida made a conscious determination of fault. I would add, however, that it is a determination that is wholly unsupportable. The sole basis for that court's determination of fault was that under Florida law a wife found guilty of adultery cannot be, as Mrs. Firestone was, awarded alimony. Time, the court reasoned, should have realized that a divorce decree containing an award of alimony could not, consistent with Florida law, have been based on adultery. But that reasoning assumes that judicial decisions can always be squared with the prior state of the law. If we need be remained that courts occasionally err in their assessment of the law, we need only refer to the subsequent history of the divorce decree involved in this case: When the divorce case reached the Supreme Court of Florida, that court found that the divorce had been granted for lack of "domestication" and pointed out that that was not one of the statutory grounds for *493 divorce. Time's responsibility was to report accurately what the trial court did, not what it could or should have done. If the trial court awarded alimony while basing the divorce on a finding of adultery by the wife, Time cannot be faulted for reporting that fact. Unless there is some basis for a finding of fault other than that given by the Supreme Court of Florida, I think it clear that there can be no liability.
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty.[1] Respondents' contention, in short, is that their pleas were the product of the State's illegal action. Notwithstanding the possible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I *776 cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue.[2] I The basic principle applicable to this case was enunciated for the Court by MR. JUSTICE BLACK in Pennsylvania ex rel. : "[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause." The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are "based on" coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession so that the plea may be said to be infected by the State's prior illegal action. Thus to invalidate a guilty plea more must be shown than the mere existence of a coerced *777 confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea. The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decreeing that the assistance of "reasonably competent" counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accommodate cases such as In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury.
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was testifying voluntarily.[3] Notwithstanding this testimony in open court, the proffering of guilty pleas, and representation by counsel, the state courts and this Court as well properly permitted a collateral attack upon the judgments of conviction entered on the guilty pleas. In explication of Chambers, the Court notes that the coercive circumstances that compelled the confessions may "have abiding impact and also taint the plea." Ante, at 767. Apparently the Court would permit a defendant who was represented by counsel to attack his conviction collaterally if he could demonstrate that coercive pressures were brought to bear upon him at the *778 very moment he was called to plead. This position is certainly unexceptionable. I cannot agree, however, that the pleading process is constitutionally adequate despite a coerced confession merely because the coercive pressures that compelled the confession ceased prior to the entry of the plea. In short, the "abiding impact" of the coerced confession may continue to prejudice a defendant's case or unfairly influence his decisions regarding his legal alternatives. Moreover, our approach in Pennsylvania ex rel. is inconsistent with the absolute rule that the Court adopts today. We there considered whether, under all the circumstances of the case, the pressures brought to bear on the defendant by the State, including the extraction of a coerced confession, were sufficient to render his guilty plea involuntary. While the fact that the defendant was not assisted by counsel was given considerable weight in determining involuntariness, it was hardly the sole critical consideration. Thus the Court's attempt to distinguish Claudy on the basis of counsel's assistance alone is unpersuasive. I would continue to adhere to the approach adopted in Chambers and Claudy and take into account all of the circumstances surrounding the entry of a plea rather than attach talismanic significance to the presence of counsel. I concluded in Parker v. North Carolina and Brady v. United States, post, at 802, that "the legal concept of `involuntariness' has not been narrowly confined but refers to a surrender of constitutional rights influenced by considerations that the government cannot properly introduce" into the pleading process. In Parker and Brady the "impermissible factor" introduced by the government was an unconstitutional death penalty scheme; here the improper influence is a coerced confession. In either event the defendant must establish that the unconstitutional influence actually infected the *779 pleading process, that it was a significant factor in his decision to plead guilty.
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
was a significant factor in his decision to plead guilty. But if he does so, then he is entitled to reversal of the judgment of conviction entered on the plea. lends additional support to this conclusion. There confessions had been illegally procured from a defendant and then introduced at his trial. At a new trial, after reversal of the defendant's conviction, he objected to the introduction of his testimony from the previous trial on the ground that he had been improperly induced to testify at the former trial by the introduction of the inadmissible confessions. We sustained this contention, noting in part that "the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled therebythe fruit of the poisonous tree, to invoke a time-worn metaphor. For the `essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' Silverthorne Lumber ". The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." U.S., at 222-. (Emphasis in original.) The same reasoning is applicable here. That is, if the coerced confession induces a guilty plea, that plea, no *780 less than the surrender of the self-incrimination privilege in Harrison, is the fruit of the State's prior illegal conduct, and thus is vulnerable to attack.[4] *781 As in Parker and Brady the Court lays great stress upon the ability of counsel to offset the improper influence injected into the pleading process by the State's unconstitutional action. However, here again, the conclusions that the Court draws from the role it assigns to counsel are, in my view, entirely incorrect, for it cannot be blandly assumed, without further discussion, that counsel will be able to render effective assistance to the defendant in freeing him from the burdens of his unconstitutionally extorted confession. In Parker and Brady there was no action that counsel could take to remove the threat posed by the unconstitutional death penalty scheme. There was no way, in short, to counteract the intrusion of an impermissible factor into the pleading process. However, where the unconstitutional factor is a coerced confession, it is not necessarily
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
unconstitutional factor is a coerced confession, it is not necessarily true that counsel's role is so limited. It is a common practice, for example, to hold pretrial hearings or devise other procedures for the purpose of permitting defendants an opportunity to challenge the admissibility of allegedly coerced confessions. If it is assumed that these procedures provide a constitutionally adequate means to attack the validity of the confession, then it must be expected that a defendant who subsequently seeks to overturn his guilty plea will come forward with a persuasive explanation for his failure to invoke those procedures which were readily available to test the validity of his confession. It does not follow from this that a defendant assisted by counsel can never demonstrate that this failure to *782 invoke the appropriate procedures was justified. The entry of a guilty plea is, essentially, a waiver, or the "intentional relinquishment or abandonment of a known right," By pleading guilty the defendant gives up not only his right to a jury trial, but also, in most jurisdictions, the opportunity to challenge the validity of his confession by whatever procedures are provided for that purpose. It is always open to a defendant to establish that his guilty plea was not a constitutionally valid waiver, that he did not deliberately bypass the orderly processes provided to determine the validity of confessions. Cf. Whether or not there has been a deliberate bypass can be determined, of course, only by a consideration of the total circumstances surrounding the entry of each plea.[5] II In the foregoing discussion I have assumed that the State has provided a constitutionally adequate method to challenge an allegedly invalid confession in the trial court. That assumption is not applicable to respondents in this case, however, because, as we held in the procedure that New York employed at the time their pleas were tendered failed to provide a constitutionally acceptable means to challenge the validity of confessions. Thus, even the *783 most expert appraisal and advice by counsel necessarily had to take into account a procedure for challenging the validity of confessions that was fundamentally defective, but that had nevertheless been approved by this Court in Hence the advice of counsel could not remedy or offset the constitutional defect infused into the pleading process. Therefore, respondents are entitled to relief if they can establish that confessions were coerced from them and that their guilty pleas were motivated in significant part by their inability to challenge the validity of the confessions in a constitutionally adequate procedure.[6] By such a showing they would establish a
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
adequate procedure.[6] By such a showing they would establish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate that their respective pleas were the product of the State's illegal action. The Court seeks to avoid the impact of upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court's confused pattern of retroactivity rules. has been held to be retroactive, at least in the sense that it requires hearings to determine the voluntariness of pre-Jackson confessions that were introduced at trial.[7] The *784 Court today decides, however, that Jackson's effect is to be limited to situations in which the confession was introduced at trial and is to have no application whatever to guilty pleas. In short, is now held to be only partially retroactive, a wholly novel and unacceptable result. As I understand the Court's opinion, there are basically three reasons why the Court rejects the contention that the Jackson-Denno defect may unconstitutionally infect the pleading process. The first is the highly formalistic notion that the guilty plea, and not the antecedent confession, is the basis of the judgments against respondents. Of course this is true in the technical sense that the guilty plea is always the legal basis of a judgment of conviction entered thereon. However, this argument hardly disposes adequately of the contention that the plea in turn was at least partially induced, and therefore is tainted, by the fact that no constitutionally adequate procedures existed to test the validity of a highly prejudicial and allegedly coerced confession. The Court's formalism is symptomatic of the desire to ignore entirely the motivational aspect of a decision to plead guilty. As long as counsel is present when the defendant pleads, the Court is apparently willing to assume that the government may inject virtually any influence into the process of deciding on a plea. However, as I demonstrated in Parker and Brady, this insistence upon ignoring the factors with which the prosecution confronts the defendant before he pleads departs broadly from the manner in which the voluntariness of guilty pleas has traditionally been approached. In short, the critical question is not, as the Court insists, whether respondents knowingly decided to plead guilty but why they made that decision. Cf. *785 Secondly, the Court views the entry of the guilty pleas as waivers of objections to the allegedly coerced confessions. For the reasons previously stated, I do not believe that the pleas were legally voluntary if respondents' allegations are proved. Nor were the pleas the relinquishment of a known right, for it was only
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
the relinquishment of a known right, for it was only when was overruled by that it became clear that the New York procedure was constitutionally inadequate. Thus there is no sense in which respondents deliberately bypassed or "waived" state procedures constitutionally adequate to adjudicate their coerced-confession claims. See ; cf. Finally, the Court takes the position, in effect, that the defect in the Stein-approved New York procedure was not very greatthat the procedure was only a little bit unconstitutionaland hence that it is too speculative to inquire whether the difference between the pre-Jackson and post-Jackson procedures would, in a particular case, alter the advice given by counsel concerning the desirability of a plea. If, indeed, the deficiency in the pre-Jackson procedure was not very great, then it is difficult to understand why we found it necessary to invalidate the procedure and, particularly, why it was imperative to apply the Jackson decision retroactively. I, for one, have never thought is so trivial, that it deals with procedural distinctions of such insignificance that they would necessarily make no difference in the plea advice given to a defendant by his attorney. To the contrary, the extent to which the constitutional defect in the pre-Jackson-Denno procedure actually infected the pleading process cannot be determined by a priori pronouncements by this Court; rather, its effect can be evaluated only after a factual inquiry into the circumstances motivating particular pleas. *786 Despite the disclaimers to the contrary, what is essentially involved both in the instant case and in Brady and Parker is nothing less than the determination of the Court to preserve the sanctity of virtually all judgments obtained by means of guilty pleas. There is no other adequate explanation for the surprising notion of partial retroactivity that the Court today propounds. An approach that shrinks from giving effect to the clear implications of our prior decisions by drawing untenable distinctions may have its appeal, but it hardly furthers the goal of principled decisionmaking. Thus, I am constrained to agree with the concurring judge in the Court of Appeals that it is "the rankest unfairness, and indeed a denigration of the rule of law, to recognize the infirmity of the pre- procedure for challenging the legality of a confession in the case of prisoners who went to trial but to deny access to the judicial process to those who improperly pleaded guilty merely because the state would have more difficulty in affording a new trial to them." Lest it be thought that my views would render the criminal process "less effective in protecting society against those
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
the criminal process "less effective in protecting society against those who have made it impossible to live today in safety," (WHITE, J., dissenting), I emphasize again that the only issue involved in this case is whether respondents are entitled to a hearing on their claims that coerced confessions and a procedural device that we condemned as unconstitutional deterred them from exercising their constitutional rights. Whether or not these allegations have bases in fact is not before us, for these individuals have never been afforded a judicial forum for the presentation of their claims. In these circumstances, I would not simply slam shut the door of the courthouse in their faces. *787 III I agree with the Court of Appeals that a hearing is required for the coerced-confession claims presented in these cases. We have, of course, held that a post-conviction hearing must be afforded to defendants whose allegations of constitutional deprivation raise factual issues and are neither "vague, conclusory, or palpably incredible," nor "patently frivolous or false," Pennsylvania ex rel.[8] Respondents have raised at least three factual issues that the record in its present form does not resolve: (1) whether confessions were obtained from them; (2) whether these confessions, if given, were coerced; and (3) whether respondents had a justifiable reason for their failure to challenge the validity of the confessions more specifically, whether the confessions, together with the Jackson-Denno defect in New York's procedures, influenced in significant part the decisions to plead guilty. As to each of these issues, respondents of course bear the burden of proof. Respondents alleged in some detail that they had been coerced by the police into confessing. They also alleged that the Jackson-Denno defect in the state procedures rendered futile any attempt to challenge the confessions in the state trial court.[9] The Court of Appeals noted *788 that, in the ordinary case, additional supporting material, such as an affidavit from the attorney who represented the petitioner, should be appended to his habeas corpus petition. Without elaboration, however, the Court of Appeals concluded that no material in corroboration was necessary in this case. To be sure, it is difficult, though not impossible, to believe that without any corroborative evidence a petitioner would ultimately succeed with a sophisticated argument such as the contention that a coerced confession, coupled with the Jackson-Denno defect, induced his guilty plea. In this connection, the views of the defense attorney when the plea was entered are particularly important because in the ordinary case counsel is in a good position to appraise the factors that actually entered into the decision to plead
|
Justice Brennan
| 1,970 | 13 |
dissenting
|
McMann v. Richardson
|
https://www.courtlistener.com/opinion/108138/mcmann-v-richardson/
|
the factors that actually entered into the decision to plead guilty. As a technical matter of pleading, however, I would not absolutely require that a petitioner, particularly one who is proceeding pro se, accompany his petition with extensive supporting materials.[10] It is of course prudent for petitioners who raise a claim such as the one presented in the instant case to append a statement from counsel, or at least an explanation of why such a statement was not procured, for the petitioner who does not do so *789 takes a considerable risk that his petition will be denied as vague, conclusory, or frivolcus.[11] The respondents in this case clearly raised the Jackson-Denno issue in their petitions to the District Court. Furthermore, this Court has not affected the judgment below insofar as it requires hearings for these respondents on issues other than their coerced-confession claims. In these circumstances, I would not disturb that portion of the Court of Appeals' order that requires the District Court to consider the merits of respondents' coerced-confession allegations. Accordingly, I would affirm the judgment of the Court of Appeals.
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
Section 236(c) of the Immigration and Nationality Act, as amended, -585, 8 U.S. C. 1226(c), provides that "[t]he Attorney General shall take into custody any alien who" is removable from this country because he has been convicted of one of a specified set of crimes. Respondent is a citizen of the Republic of South Korea. He entered the United States in 1984, at the age of six, and became a lawful permanent resident of the United States two years later. In July 1996, he was convicted of first-degree burglary in state court in California and, in April 1997, he was convicted of a second crime, "petty theft with priors." The Immigration and Naturalization Service (INS) charged respondent with being deportable from the United States in light of these convictions, and detained him pending his removal hearing.[1] We hold that Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may require that persons such as respondent be detained for the brief period necessary for their removal proceedings. Respondent does not dispute the validity of his prior convictions, which were obtained following the full procedural protections our criminal justice system offers. Respondent also did not dispute the INS' conclusion that he is subject to *514 mandatory detention under 1226(c). See Brief in Opposition 1-2; App. 8-9.[2] In conceding that he was deportable, respondent forwent a hearing at which he would have been entitled to raise any nonfrivolous argument available to demonstrate that he was not properly included in a mandatory detention category. See 8 CFR 3.19(h)(2)(ii) ; Matter of Joseph,[3] Respondent instead filed a habeas corpus action pursuant to 28 U.S. C. 2241 in the United States District Court for the Northern District of California challenging the constitutionality of 1226(c) itself. App. to Pet. for Cert. 2a. He argued that his detention under 1226(c) violated due process because the INS had made no determination that he posed either a danger to society or a flight risk. 1a, 33a. The District Court agreed with respondent that 1226(c)'s requirement of mandatory detention for certain criminal aliens was unconstitutional. Kim v. Schiltgen, No. C 99-2257 *515 SI App. to Pet. for Cert. 31a-51a. The District Court therefore granted respondent's petition subject to the INS' prompt undertaking of an individualized bond hearing to determine whether respondent posed either a flight risk or a danger to the community. 0a. Following that decision, the District Director of the INS released respondent on $5,000 bond. The Court of Appeals for the
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
respondent on $5,000 bond. The Court of Appeals for the Ninth Circuit affirmed. That court held that 1226(c) violates substantive due process as applied to respondent because he is a permanent resident alien. It noted that permanent resident aliens constitute the most favored category of aliens and that they have the right to reside permanently in the United States, to work here, and to apply for citizenship. The court recognized and rejected the Government's two principal justifications for mandatory detention under 1226(c): (1) ensuring the presence of criminal aliens at their removal proceedings; and (2) protecting the public from dangerous criminal The Court of Appeals discounted the first justification because it found that not all aliens detained pursuant to 1226(c) would ultimately be deported. And it discounted the second justification on the grounds that the aggravated felony classification triggering respondent's detention included crimes that the court did not consider "egregious" or otherwise sufficiently dangerous to the public to necessitate mandatory detention. Respondent's crimes of first-degree burglary (burglary of an inhabited dwelling) and petty theft, for instance, the Ninth Circuit dismissed as "rather ordinary crimes." Relying upon our recent decision in the Court of Appeals concluded that the INS had not provided a justification "for no-bail civil detention sufficient to overcome a lawful permanent resident alien's liberty interest." *516 Three other Courts of Appeals have reached the same conclusion. See ; ; The Seventh Circuit, however, rejected a constitutional challenge to 1226(c) by a permanent resident alien. We granted certiorari to resolve this conflict, see and now reverse. I We address first the argument that 8 U.S. C. 1226(e) deprives us of jurisdiction to hear this case. See An amicus argues, and the concurring opinion agrees, that 1226(e) deprives the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention under 1226(c). See Brief for Washington Legal Foundation et al. as Amici Curiae. Section 1226(e) states: "(e) Judicial review "The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole." The amicus argues that respondent is contesting a "decision by the Attorney General" to detain him under 1226(c), and that, accordingly, no court may set aside that action. Brief for Washington Legal Foundation et al. as Amici Curiae 7-8. But respondent does not challenge a "discretionary judgment" by the Attorney General or a "decision" that the Attorney General
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
the Attorney General or a "decision" that the Attorney General has made regarding his detention or release. *517 Rather, respondent challenges the statutory framework that permits his detention without bail. This Court has held that "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." ; see also And, where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent. See ; see also at 298 (citing cases refusing to find bar to habeas review where there was no specific mention of the Court's authority to hear habeas petitions); (arguing that opinion established "a superclear statement, `magic words' requirement for the congressional expression of" an intent to preclude habeas review). Section 1226(e) contains no explicit provision barring habeas review, and we think that its clear text does not bar respondent's constitutional challenge to the legislation authorizing his detention without bail. II Having determined that the federal courts have jurisdiction to review a constitutional challenge to 1226(c), we proceed to review respondent's claim. Section 1226(c) mandates *518 detention during removal proceedings for a limited class of deportable aliens including those convicted of an aggravated felony. Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by See, e. g., Criminal Aliens in the United States: Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Governmental Affairs, 103d Cong., 1st Sess. ; S. Rep. No. 104-48, p. 1 (1995) (hereinafter S. Rep. 104-48) Criminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well. Congress' investigations showed, however, that the INS could not even identify most deportable aliens, much less locate them and remove them from the country. One study showed that, at the then-current rate of deportation, it would take 23 years to remove every criminal alien already subject to deportation. Making matters worse, criminal aliens who were deported swiftly reentered the country illegally in great numbers. The INS' near-total inability to remove deportable criminal aliens imposed more than a monetary cost on the Nation. First, as Congress explained, "[a]liens who enter or remain in the United States in violation of our law are effectively taking immigration opportunities that might otherwise be extended to others." S. Rep. No. 104-249, p. 7 (1996). Second, deportable criminal aliens who remained in the United States often
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
deportable criminal aliens who remained in the United States often committed more crimes before being removed. One 1986 study showed that, after criminal aliens were identified as deportable, 77% were arrested at least once more and 45% nearly half were arrested multiple times before their deportation proceedings even began. Hearing on H. R. 3333 before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the *519 Judiciary, 101st Cong., 1st Sess., 54, 52 (1989) (hereinafter 1989 House Hearing); see also -714 (discussing high rates of recidivism for released criminal aliens). Congress also had before it evidence that one of the major causes of the INS' failure to remove deportable criminal aliens was the agency's failure to detain those aliens during their deportation proceedings. See Department of Justice, Office of the Inspector General, Immigration and Naturalization Service, Deportation of Aliens After Final Orders Have Been Issued, Rep. No. I-96-03 (Mar. 1996), App. 46 (hereinafter Inspection Report) ("Detention is key to effective deportation"); see also H. R. Rep. No. 104-469, p. 123 (1995). The Attorney General at the time had broad discretion to conduct individualized bond hearings and to release criminal aliens from custody during their removal proceedings when those aliens were determined not to present an excessive flight risk or threat to society. See 8 U.S. C. 1252(a) (1982 ed.). Despite this discretion to conduct bond hearings, however, in practice the INS faced severe limitations on funding and detention space, which considerations affected its release determinations. S. Rep. 104-48, at 23 ("[R]elease determinations are made by the INS in large part, according to the number of beds available in a particular region"); see also Reply Brief for Petitioners 9. Once released, more than 20% of deportable criminal aliens failed to appear for their removal hearings. See S. Rep. 104-48, at 2; see also Brief for Petitioners 19.[4] The *520 dissent disputes that statistic, post, 62-564 (opinion of SOUTER, J.), but goes on to praise a subsequent study conducted by the Vera Institute of Justice that more than confirms it. Post, 65-566. As the dissent explains, the Vera study found that "77% of those [deportable criminal aliens] released on bond" showed up for their removal proceedings. Post, 65. This finding that one out of four criminal aliens released on bond absconded prior to the completion of his removal proceedings is even more striking than the one-in-five flight rate reflected in the evidence before Congress when it adopted 1226(c).[5] The Vera Institute study strongly supports Congress' concern that, even with individualized screening, releasing deportable criminal
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
Congress' concern that, even with individualized screening, releasing deportable criminal aliens on bond would lead to an unacceptable rate of flight. Congress amended the immigration laws several times toward the end of the 1980's. In 1988, Congress limited *521 the Attorney General's discretion over custody determinations with respect to deportable aliens who had been convicted of aggravated felonies. See Tit. VII, 7343(a), Then, in 1990, Congress broadened the definition of "aggravated felony," subjecting more criminal aliens to mandatory detention. See Tit. V, 501(a), At the same time, however, Congress added a new provision, 8 U.S. C. 1252(a)(2)(B) (1988 ed., Supp. II), authorizing the Attorney General to release permanent resident aliens during their deportation proceedings where such aliens were found not to constitute a flight risk or threat to the community. See Tit. V, 504(a)(5), During the same period in which Congress was making incremental changes to the immigration laws, it was also considering wholesale reform of those laws. Some studies presented to Congress suggested that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country. See, e. g., 1989 House Hearing 75; Inspection Report, App. 46; S. Rep. 104-48, 2 ("Congress should consider requiring that all aggravated felons be detained pending deportation. Such a step may be necessary because of the high rate of no-shows for those criminal aliens released on bond"). It was following those Reports that Congress enacted 8 U.S. C. 1226, requiring the Attorney General to detain a subset of deportable criminal aliens pending a determination of their removability. "In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens." The dissent seeks to avoid this fundamental premise of immigration law by repeatedly referring to it as "dictum." Post, 47-549, n. 9 (opinion of SOUTER, J.). The Court in however, made the statement the dissent now seeks to avoid in reliance on clear *522 precedent establishing that "`any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.'" n. 17 ). And, since this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would be unacceptable if applied to citizens. See, e. g., ("The liberty rights of the aliens before us here are subject to limitations and conditions not applicable to citizens"); in turn quoting at )); United In his habeas corpus challenge, respondent did
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
at )); United In his habeas corpus challenge, respondent did not contest Congress' general authority to remove criminal aliens from the United States. Nor did he argue that he himself was not "deportable" within the meaning of 1226(c).[6] Rather, *523 respondent argued that the Government may not, consistent with the Due Process Clause of the Fifth Amendment, detain him for the brief period necessary for his removal proceedings. The dissent, after an initial detour on the issue of respondent's concession, see post, 41-543 (opinion of SOUTER, J.), ultimately acknowledges the real issue in this case. Post, 55-556, n. 11; see also Brief in Opposition 1-2 (explaining that respondent's "challenge is solely to Section 1226(c)'s absolute prohibition on his release from detention"). "It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings." 06. At the same time, however, this Court has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process. As we said more than a century ago, deportation proceedings "would be vain if those accused could not be held in custody pending the inquiry into their true character." Wong ; see also 05-306; ; ("Congress' power to detain aliens in connection with removal or exclusion is part of the Legislature's considerable authority over immigration matters").[7] In the Court considered a challenge to the detention of aliens who were deportable because of their participation in Communist activities. *524 The detained aliens did not deny that they were members of the Communist Party or that they were therefore deportable. 30. Instead, like respondent in the present case, they challenged their detention on the grounds that there had been no finding that they were unlikely to appear for their deportation proceedings when ordered to do so. ; see also Brief for Petitioner in O. T. 1951, No. 35, p. 12 (arguing that legislative determinations could not justify "depriving [an alien] of his liberty without facts personal to the individual"). Although the Attorney General ostensibly had discretion to release detained Communist aliens on bond, the INS had adopted a policy of refusing to grant bail to those aliens in light of what Justice Frankfurter viewed as the mistaken "conception that Congress had made [alien Communists] in effect unbailable." 342 U.S., 59, 568 The Court rejected the aliens' claims that they were entitled to be released from detention if they did not pose a flight risk, explaining "[d]etention is necessarily a part of this deportation procedure." ; see also 35. The Court noted that Congress had chosen to make such aliens deportable
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
noted that Congress had chosen to make such aliens deportable based on its "understanding of [Communists'] attitude toward the use of force and violence to accomplish their political aims." 41. And it concluded that the INS could deny bail to the detainees "by reference to the legislative scheme" even without any finding of flight risk. 43; see also 50 ("Denial [of bail] was not on the ground that if released [the aliens] might try to evade obedience to possible deportation orders"); 51, and n. 6. The dissent argues that, even though the aliens in Carlson were not flight risks, "individualized findings of dangerousness were made" as to each of the Post, 73 (opinion of SOUTER, J.). The dissent, again, is mistaken. The aliens in Carlson had not been found individually dangerous. *525 The only evidence against them was their membership in the Communist Party and "a degree of participation in Communist activities." 342 U.S., 41. There was no "individualized findin[g]" of likely future dangerousness as to any of the aliens and, in at least one case, there was a specific finding of nondangerousness.[8] The Court nonetheless concluded that the denial of bail was permissible "by reference to the legislative scheme to eradicate the evils of Communist activity." 43.[9] *526 In the Court considered another due process challenge to detention during deportation proceedings. The due process challenge there was brought by a class of alien juveniles. The INS had arrested them and was holding them in custody pending their deportation hearings. The aliens challenged the INS' policy of releasing detained alien juveniles only into the care of their parents, legal guardians, or certain other adult relatives. See, e. g., at 297 (codified as to deportation at 8 CFR 242.24 (1992))). The aliens argued that the policy improperly relied "upon a `blanket' presumption of the unsuitability of custodians other than parents, close relatives, and guardians" to care for the detained juvenile 507 U.S., 13. In rejecting this argument, the Court emphasized that "reasonable presumptions and generic rules," even when made by the INS rather than Congress, are not necessarily impermissible exercises of Congress' traditional power to legislate with respect to ; see also 13-314 Thus, as with the prior challenges to detention during deportation proceedings, the Court in rejected the due process challenge and upheld the constitutionality of the detention. Despite this Court's longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings, respondent argues that the narrow detention policy reflected in 8 U.S. C. 1226(c) violates due process. Respondent, like *527 the
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
U.S. C. 1226(c) violates due process. Respondent, like *527 the four Courts of Appeals that have held 1226(c) to be unconstitutional, relies heavily upon our recent opinion in In the Court considered a due process challenge to detention of aliens under 8 U.S. C. 1231 (1994 ed., Supp. V), which governs detention following a final order of Section 1231(a)(6) provides, among other things, that when an alien who has been ordered removed is not in fact removed during the 90-day statutory "removal period," that alien "may be detained beyond the removal period" in the discretion of the Attorney General. The Court in read 1231 to authorize continued detention of an alien following the 90-day removal period for only such time as is reasonably necessary to secure the alien's But is materially different from the present case in two respects. First, in the aliens challenging their detention following final orders of deportation were ones for whom removal was "no longer practically attainable." The Court thus held that the detention there did not serve its purported immigration purpose. In so holding, the Court rejected the Government's claim that, by detaining the aliens involved, it could prevent them from fleeing prior to their The Court observed that where, as there, "detention's goal is no longer practically attainable, detention no longer bears a reasonable relation to the purpose for which the individual was committed."[10] In the present case, the statutory provision at issue governs detention of deportable criminal aliens pending their *528 removal proceedings. Such detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed. Respondent disagrees, arguing that there is no evidence that mandatory detention is necessary because the Government has never shown that individualized bond hearings would be ineffective. See Brief for Respondent 14. But as discussed above, see 19-520, in adopting 1226(c), Congress had before it evidence suggesting that permitting discretionary release of aliens pending their removal hearings would lead to large numbers of deportable criminal aliens skipping their hearings and remaining at large in the United States unlawfully. Respondent argues that these statistics are irrelevant and do not demonstrate that individualized bond hearings "are ineffective or burdensome." Brief for Respondent 33-40. It is of course true that when Congress enacted 1226, individualized bail determinations had not been tested under optimal conditions, or tested in all their possible permutations. But when the Government deals with deportable aliens, the Due Process Clause does not require it to employ the
|
Justice Rehnquist
| 2,003 | 19 |
majority
|
Demore v. Kim
|
https://www.courtlistener.com/opinion/127916/demore-v-kim/
|
Due Process Clause does not require it to employ the least burdensome means to accomplish its goal. The evidence Congress had before it certainly supports the approach it selected even if other, hypothetical studies might have suggested different courses of action. Cf., e. g., Los ; 15 )). is materially different from the present case in a second respect as well. While the period of detention at issue in was "indefinite" and "potentially permanent," 533 U.S., -691, the detention here is of a much shorter duration. *529 distinguished the statutory provision it was there considering from 1226 on these very grounds, noting that "post-removal-period detention, unlike detention pending a determination of removability, has no obvious termination point." Under 1226(c), not only does detention have a definite termination point, in the majority of cases it lasts for less than the 90 days we considered presumptively valid in[11] The Executive Office for Immigration Review has calculated that, in 85% of the cases in which aliens are detained pursuant to 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days. Brief for Petitioners 39-40. In the remaining 15% of cases, in which the alien appeals the decision of the immigration judge to the Board of Immigration Appeals, appeal takes an average of four months, with a median time that is slightly shorter.[12] These statistics do not include the many cases in which removal proceedings are completed while the alien is still serving time for the underlying conviction. *530 n. 17.[13] In those cases, the aliens involved are never subjected to mandatory detention at all. In sum, the detention at stake under 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal.[14] Respondent was detained for somewhat *531 what longer than the average spending six months in INS custody prior to the District Court's order granting habeas relief, but respondent himself had requested a continuance of his removal hearing.[15] For the reasons set forth above, respondent's claim must fail. Detention during removal proceedings is a constitutionally permissible part of that process. See, e. g., Wong 163 U. S., at ; ; The INS detention of respondent, a criminal alien who has conceded that he is deportable, for the limited period of his removal proceedings, is governed by these cases. The judgment of the Court of Appeals is Reversed.
|
Justice Breyer
| 2,002 | 2 |
majority
|
Utah v. Evans
|
https://www.courtlistener.com/opinion/121162/utah-v-evans/
|
The question before us is whether the Census Bureau's use in the year 2000 census of a methodology called "hot-deck imputation" either (1) violates a statutory provision forbidding use of "the statistical method known as `sampling'" or (2) is inconsistent with the Constitution's statement that an "actual Enumeration" be made. 13 U.S. C. 5; U. S. Const., Art. I, 2, cl. 3. We conclude that use of "hot-deck imputation" violates neither the statute nor the Constitution. I A "Hot-deck imputation" refers to the way in which the Census Bureau, when conducting the year 2000 census, filled in certain gaps in its information and resolved certain conflicts in the data. The Bureau derives most census information through reference to what is, in effect, a nationwide list of addresses. It sends forms by mail to each of those addresses. If no one writes back or if the information supplied is confusing, contradictory, or incomplete, it follows up with several personal visits by Bureau employees (who may also obtain information on addresses not listed). Occasionally, despite the visits, the Bureau will find that it still lacks adequate information or that information provided by those in the field has somehow not been integrated into the master list. The Bureau may have conflicting indications, for example, about whether an address on the list (or a newly generated address) represents a housing unit, an office building, or a vacant lot; about whether a residential building is vacant or occupied; or about the number of persons an occupied unit contains. These conflicts and uncertainties may arise because no one wrote back, because agents in the field produced confused responses, or because those who processed the responses made mistakes. There may be too little time left for further personal visits. And the Bureau may then decide *458 "imputation" represents the most practical way to resolve remaining informational uncertainties. The Bureau refers to different kinds of "imputation" depending upon the nature of the missing or confusing information. Where, for example, the missing or confused information concerns the existence of a housing unit, the Bureau speaks of "status imputation." Where the missing or confused information concerns whether a unit is vacant or occupied, the Bureau speaks of "occupancy imputation." And where the missing or confused information concerns the number of people living in a unit, the Bureau refers to "household size imputation." In each case, however, the Bureau proceeds in a somewhat similar way: It imputes the relevant information by inferring that the address or unit about which it is uncertain has the same population characteristics as those of a
|
Justice Breyer
| 2,002 | 2 |
majority
|
Utah v. Evans
|
https://www.courtlistener.com/opinion/121162/utah-v-evans/
|
uncertain has the same population characteristics as those of a "nearby sample or `donor'" address or unite. g., its "geographically closest neighbor of the same type (i. e., apartment or single-family dwelling) that did not return a census questionnaire" by mail. Brief for Appellants 7-8, 11. Because the Bureau derives its information about the known address or unit from the current 2000 census rather than from prior censuses, it refers to its imputation as "hot-deck," rather than "cold-deck," imputation. These three forms of imputation increased the final year 2000 count by about 1.2 million people, representing 0.4% of the total population. But because this small percentage was spread unevenly across the country, it makes a difference in the next apportionment of congressional In particular, imputation increased North Carolina's population by 0.4% while increasing Utah's population by only 0.2%. And the parties agree that that difference means that North Carolina will receive one more Representative, and Utah will receive one less Representative, than if the Bureau had not used imputation but instead had simply filled relevant informational gaps by counting the related number of individuals as zero. *459 B After analyzing the census figures, Utah brought this lawsuit against the Secretary of and the Acting Director of the Census Bureau, the officials to whom the statutes delegate authority to conduct the census. 28 U.S. C. 2284. Utah claimed that the Bureau's use of "hot-deck imputation" violates the statutory prohibition against use of "the statistical method known as `sampling,'" 13 U.S. C. 5, and is inconsistent with the Constitution's statement that an "actual Enumeration" be made, Art. I, 2, cl. 3. Utah sought an injunction compelling the census officials to change the official census results. North Carolina intervened. The District Court found in the Census Bureau's favor. Utah appealed. 28 U.S. C. 13. And we postponed consideration of jurisdiction pending hearing the case on the merits. II North Carolina argues at the outset that the federal courts lack the constitutional power to hear this case. Article III, 2, of the Constitution extends the "judicial Power" of the United States to actual "Cases" and "Controversies." A lawsuit does not fall within this grant of judicial authority unless, among other things, courts have the power to "redress" the "injury" that the defendant allegedly "caused" the plaintiff. ; And, in North Carolina's view, the courts cannot "redress" the injury that Utah claims to have suffered here. Hence Utah does not have the "standing" that the Constitution demands. In this Court considered, and rejected, a similar claim. A private plaintiff had sued the Secretary of challenging
|
Justice Breyer
| 2,002 | 2 |
majority
|
Utah v. Evans
|
https://www.courtlistener.com/opinion/121162/utah-v-evans/
|
claim. A private plaintiff had sued the Secretary of challenging the legality of a 90 census counting method as "arbitrary and capricious" and contrary to certain specific statutes. *460 That plaintiff sought to require the Secretary to recalculate the numbers and recertify the official results. The plaintiff hoped that would ultimately lead to a reapportionment that would assign an additional Representative to his own State. Eight Members of the Court found that the plaintiff had standing. Four Justices considered only whether the law permitted courts to review Census Bureau decisions under the Administrative Procedure Act. They concluded that it did. And they saw no further standing obstacle. Four other Justices went further. They found that the controversy between the plaintiff and the Secretary was concrete and adversary. They said: "The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy." They also found that, as a practical matter, redress seemed likely. They said: "[A]s the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision even though they would not be directly bound by such a determination." They saw no further potential obstacle to standing. We can find no significant difference between the plaintiff in Franklin and the plaintiff (Utah) here. Both brought their lawsuits after the census was complete. Both claimed that the Census Bureau followed legally improper counting methods. Both sought an injunction ordering the Secretary *461 of to recalculate the numbers and recertify the official result. Both reasonably believed that the Secretary's recertification, as a practical matter, would likely lead to a new, more favorable, apportionment of Given these similarities, North Carolina must convince us that we should reconsider Franklin. It has not done so. North Carolina does not deny that the courts can order the Secretary of to recalculate the numbers and to recertify the official census result. Rather it points out that Utah suffers, not simply from the lack of a proper census "report" (a document), but more importantly from the lack of the additional congressional Representative to which North Carolina believes itself entitled as a consequence of the filing of that document. Whatever we may have said in Franklin, North Carolina argues, court-ordered relief simply cannot reach beyond the "report" and, here, a proper "report" cannot help bring about that ultimate "redress." The reason North Carolina believes that
|
Justice Breyer
| 2,002 | 2 |
majority
|
Utah v. Evans
|
https://www.courtlistener.com/opinion/121162/utah-v-evans/
|
about that ultimate "redress." The reason North Carolina believes that court-ordered relief, i. e., the new document, cannot help is that, in its view, the statutes that set forth the census process make ultimate redress legally impossible. Those statutes specify that the Secretary of must "take a decennial census of population as of the first day of April" 2000, 13 U.S. C. 141(a); he must report the results to the President by January 1, 2001, 141(b); the President must transmit to Congress by January 12, 2001, a statement showing the "whole number of persons in each State and the number of to which each State would be entitled," 2 U.S. C. 2a(a); and, within 15 days of receiving that statement, the Clerk of the House of must "send to the executive of each State a certificate of the number of to which such State is entitled," 2a(b). The statutes also say that, once all that is done, each State "shall be entitled" to the number of that the "certificate" specifies "until the taking effect of a reapportionment under this section or subsequent statute." *462 North Carolina points out that all of this was done by January 16, 2001. And North Carolina concludes that it is "entitled" to the number of that the "certificate" specifies (i. e., one more than Utah would like)come what may. We disagree with North Carolina because we do not read these statutes so absolutelyas if they barred a certificate's revision in all cases no matter what. The statutes themselves do not expressly say what is to occur should the "report" or the "statement" upon which the Clerk's "certificate" rests turn out to contain, or to reflect, a serious mistake. The language is open to a more flexible reading that would permit correction of a certificate found to rest upon a serious errorsay, a clerical, a mathematical, or a calculation error, in census data or in its transposition. And if that error is uncovered before new are actually selected, and its correction translates mechanically into a new apportionment of without further need for exercise of policy judgment, such mechanical revision makes good sense. In such cases, the "certificate" previously sent would have turned out not to have been a proper or valid certificate, it being understood that these statutes do not bar the substitution of a newer, more accurate version. Guided by Franklin, which found standing despite the presence of this statute, we read the statute as permitting "certificate" revision in such cases of error, and we include among them cases of court-determined legal error leading to
|
Justice Breyer
| 2,002 | 2 |
majority
|
Utah v. Evans
|
https://www.courtlistener.com/opinion/121162/utah-v-evans/
|
include among them cases of court-determined legal error leading to a court-required revision of the underlying Secretarial "report." So read, the statute poses no legal bar to "redress." North Carolina adds that another statute, enacted after Franklin, nonetheless bars our consideration of this case. That statute authorizes "[a]ny person aggrieved by the use of any [unlawful] statistical method" to bring "a civil action" for declaratory or injunctive "relief against the use of such method." Title II, 209(b), North Carolina argues that this statute, by directly authorizing *463 a lawsuit prior to conclusion of the census, implicitly forbids a lawsuit after its conclusion. And it supports this reading by pointing to a legislative finding that it would "be impracticable" to provide relief "after" that time. 209(a)(8). This statute, however, does not say that it bars postcensus lawsuits. It does not explain why Congress would have wished to deprive of its day in court a State that did not learn about a counting method's representational consequences until after the census is completeand hence had little, if any, incentive to bring a precensus action. Nor (as we have just explained), if a lawsuit is brought soon enough after completion of the census and heard quickly enough, is relief necessarily "impracticable." We read limitations on our jurisdiction to review narrowly. See ; see also But see National Railroad Passenger We do not normally read into a statute an unexpressed congressional intent to bar jurisdiction that we have previously exercised. Franklin; Department of And we shall not do so here. Neither statute posing an absolute legal barrier to relief, we believe it likely that Utah's victory here would bring about the ultimate relief that Utah seeks. Victory would mean a declaration leading, or an injunction requiring, the Secretary to substitute a new "report" for the old one. Should the new report contain a different conclusion about the relative populations of North Carolina and Utah, the relevant calculations and consequent apportionment-related steps would be purely mechanical; and several months would remain prior to the first post-2000 census congressional election. Under these circumstances, it would seem, *464 as in Franklin, "substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision" 505 U.S., Moreover, in terms of our "standing" precedent, the courts would have ordered a change in a legal status (that of the "report"), and the practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered. We
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.