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1 | Section 6 of Pub. L. 280 authorizes the people of States whose constitutions or statutes contain organic law disclaimers of jurisdiction over Indian country to amend "where necessary" their constitutions or statutes to remove any legal impediment to assumption of such jurisdiction under the Act, notwithstanding the provision of any Enabling Act for the admission of the State, but provided that the Act shall not become effective with respect to such assumption of jurisdiction until the people of the State have appropriately amended their state constitution or statutes as the case may be. In 7 of Pub. L. 280, Congress gave the consent of the United States "to any other State ... to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." The State of Washington's Constitution contains a disclaimer of authority over Indian country, and hence the State is one of those covered by 6. In 1963, after the Washington Supreme Court in another case had held that the barrier posed by the disclaimer could be lifted by the state legislature, the legislature enacted a statute (Chapter 36) obligating the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands unless the affected tribe so requested. Appellee Yakima Nation, which did not make such a request, brought this action in Federal District Court challenging the statutory and constitutional validity of the State's partial assertion of jurisdiction on its Reservation. The Tribe contended that the State had not complied with the procedural requirements of Pub. L. 280, especially the requirement that the State first amend its constitution; that, in any event, Pub. L. 280 did not authorize the State to assert only partial jurisdiction within an Indian reservation; and that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment. The District Court rejected both the statutory and constitutional claims and entered judgment for the State. The Court of Appeals, while rejecting the contention that Washington's assumption of only partial jurisdiction was not authorized by Congress, reversed, holding that the "checker-board" jurisdictional system produced by Chapter 36 had no rational foundation and therefore violated the Equal Protection Clause. Held: 1. Section 6 of Pub. L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction over an Indian reservation, and any Enabling Act requirement of this nature was effectively repealed by 6. Here, the Washington Supreme Court, having determined that for purposes of the repeal of the state constitutional disclaimer legislative action is sufficient and the state legislature having enacted legislation obligating the State to assume jurisdiction under Pub. L. 280, it follows that the State has satisfied the procedural requirements of 6. Pp. 478-493. 2. Once the requirements of 6 have been satisfied, the terms of 7 govern the scope of jurisdiction conferred upon disclaimer States. Statutory authorization for the partial subject-matter and geographic jurisdiction asserted by Washington is found in the words of 7 permitting option States to assume jurisdiction "in such manner" as the people of the State shall "by affirmative legislative action, obligate and bind the State to assumption thereof." The phrase "in such manner" means at least that an option State can condition the assumption of full jurisdiction on an affected tribe's consent. Here, Washington has offered to assume full jurisdiction if a tribe so requests. The partial jurisdiction asserted on the reservations of nonconsenting tribes reflects a responsible attempt to accommodate both state and tribal interests and is consistent with the concerns that underlay the adoption of Pub. L. 280. Accordingly, it does not violate the terms of 7. Pp. 493-499. 3. The "checkerboard" pattern of jurisdiction ordained by Chapter 36 is not on its face invalid under the Equal Protection Clause. Pp. 499-502. (a) The classifications based on tribal status and land tenure implicit in Chapter 36 are not "suspect" so as to require that they be justified by a compelling state interest nor does Chapter 36 abridge any fundamental right of self-government. Pp. 500-501. (b) Chapter 36 is valid as bearing a rational relationship to the State's interest in providing protection to non-Indian citizens living within a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands, the land-tenure classification being neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Pp. 501-502. 552 F.2d 1332, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 502.Slade Gorton, Attorney General of Washington, argued the cause for appellants. With him on the briefs were Malachy R. Murphy, Deputy Attorney General, and Jeffrey C. Sullivan.James B. Hovis argued the cause and filed a brief for appellee.Louis F. Claiborne argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Peter R. Steenland, Jr., Carl Strass, and Neil T. Proto.* [Footnote *] Michael Taylor, Robert L. Pirtle, and Robert D. Dellwo filed a brief for the Confederated Tribes of the Colville Reservation et al. as amici curiae.MR. JUSTICE STEWART delivered the opinion of the Court.In this case we are called upon to resolve a dispute between the State of Washington and the Yakima Indian Nation over the validity of the State's exercise of jurisdiction on the Yakima Reservation. In 1963 the Washington Legislature obligated the State to assume civil and criminal jurisdiction over Indians and Indian territory within the State, subject only to the condition that in all but eight subject-matter areas jurisdiction would not extend to Indians on trust or restricted lands without the request of the Indian tribe affected. Ch. 36, 1963 Wash. Laws.1 The Yakima Nation did not make such a request. State authority over Indians within the Yakima Reservation was thus made by Chapter 36 to depend on the title status of the property on which the offense or transaction occurred and upon the nature of the subject matter.The Yakima Nation brought this action in a Federal District Court challenging the statutory and constitutional validity of the State's partial assertion of jurisdiction on its Reservation. The Tribe contended that the federal statute upon which the State based its authority to assume jurisdiction over the Reservation, Pub. L. 280,2 imposed certain procedural requirements, with which the State had not complied - most notably, a requirement that Washington first amend its own constitution - and that in any event Pub. L. 280 did not authorize the State to assert only partial jurisdiction within an Indian reservation. Finally, the Tribe contended that Chapter 36, even if authorized by Congress, violated the equal protection and due process guarantees of the Fourteenth Amendment.The District Court rejected both the statutory and constitutional claims and entered judgment for the State.3 On appeal, the contention that Washington's assumption of only partial jurisdiction was not authorized by Congress was rejected by the Court of Appeals for the Ninth Circuit, sitting en banc. The en banc court then referred the case to the original panel for consideration of the remaining issues. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 550 F.2d 443 (Yakima I).4 The three-judge panel, confining itself to consideration of the constitutional validity of Chapter 36, concluded that the "checkerboard" jurisdictional system it produced was without any rational foundation and therefore violative of the Equal Protection Clause of the Fourteenth Amendment. Finding no basis upon which to sever the offending portion of the legislation, the appellate court declared Chapter 36 unconstitutional in its entirety, and reversed the judgment of the District Court. Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 552 F.2d 1332 (Yakima II).The State then brought an appeal to this Court. In noting probable jurisdiction of the appeal, we requested the parties to address the issue whether the partial geographic and subject-matter jurisdiction ordained by Chapter 36 is authorized by federal law, as well as the Equal Protection Clause issue. .5 IThe Confederated Bands and Tribes of the Yakima Indian Nation comprise 14 originally distinct Indian tribes that joined together in the middle of the 19th century for purposes of their relationships with the United States. A treaty was signed with the United States in 1855, under which it was agreed that the various tribes would be considered "one nation" and that specified lands located in the Territory of Washington would be set aside for their exclusive use. The treaty was ratified by Congress in 1859. 12 Stat. 951. Since that time, the Yakima Nation has without interruption maintained its tribal identity.The Yakima Reservation is located in the southeastern part of the State of Washington and now consists of approximately 1,387,505 acres of land, of which some 80% is held in trust by the United States for the Yakima Nation or individual members of the Tribe. The remaining parcels of land are held in fee by Indian and non-Indian owners. Much of the trust acreage on the Reservation is forest. The Tribe receives the bulk of its income from timber, and over half of the Reservation is closed to permanent settlement in order to protect the forest area. The remaining lands are primarily agricultural. There are three incorporated towns on the Reservation, the largest being Toppenish, with a population of under 6,000.The land held in fee is scattered throughout the Reservation, but most of it is concentrated in the northeastern portion close to the Yakima River and within the three towns of Toppenish, Wapato, and Harrah. Of the 25,000 permanent residents of the Reservation, 3,074 are members of the Yakima Nation, and tribal members live in all of the inhabited areas of the Reservation.6 In the three towns - where over half of the non-Indian population resides - members of the Tribe are substantially outnumbered by non-Indian residents occupying fee land.Before the enactment of the state law here in issue, the Yakima Nation was subject to the general jurisdictional principles that apply in Indian country in the absence of federal legislation to the contrary. Under those principles, which received their first and fullest expression in Worcester v. Georgia, 6 Pet. 515, 517, state law reaches within the exterior boundaries of an Indian reservation only if it would not infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, .7 As a practical matter, this has meant that criminal offenses by or against Indians have been subject only to federal or tribal laws, Moe v. Salish & Kootenai Tribes, , except where Congress in the exercise of its plenary and exclusive power over Indian affairs has "expressly provided that State laws shall apply." McClanahan v. Arizona State Tax Comm'n, .Public Law 280, upon which the State of Washington relied for its authority to assert jurisdiction over the Yakima Reservation under Chapter 36, was enacted by Congress in 1953 in part to deal with the "problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement." Bryan v. Itasca County, ; H. R. Rep. No. 848, 83d Cong., 1st Sess., 5-6 (1953). The basic terms of Pub. L. 280, which was the first federal jurisdictional statute of general applicability to Indian reservation lands,8 are well known.9 To five States it effected an immediate cession of criminal and civil jurisdiction over Indian country, with an express exception for the reservations of three tribes. Pub. L. 280, 2 and 4.10 To the remaining States it gave an option to assume jurisdiction over criminal offenses and civil causes of action in Indian country without consulting with or securing the consent of the tribes that would be affected. States whose constitutions or statutes contained organic law disclaimers of jurisdiction over Indian country were dealt with in 6.11 The people of those States were given permission to amend "where necessary" their state constitutions or existing statutes to remove any legal impediment to the assumption of jurisdiction under the Act. All others were covered in 7.12 The Washington Constitution contains a disclaimer of authority over Indian country,13 and the State is, therefore, one of those covered by 6 of Pub. L. 280. The State did not take any action under the purported authority of Pub. L. 280 until 1957. In that year its legislature enacted a statute which obligated the State to assume criminal and civil jurisdiction over any Indian reservation within the State at the request of the tribe affected.14 Under this legislation state jurisdiction was requested by and extended to several Indian tribes within the State.15 In one of the first prosecutions brought under the 1957 jurisdictional scheme, an Indian defendant whose tribe had consented to the extension of jurisdiction challenged its validity on the ground that the disclaimer clause in the state constitution had not been amended in the manner allegedly required by 6 of Pub. L. 280. State v. Paul, 53 Wash. 2d 789, 337 P.2d 33. The Washington Supreme Court rejected the argument, construing the state constitutional provision to mean that the barrier posed by the disclaimer could be lifted by the state legislature.16 In 1963, Washington enacted Chapter 36, the law at issue in this litigation.17 The most significant feature of the new statute was its provision for the extension of at least some jurisdiction over all Indian lands within the State, whether or not the affected tribe gave its consent. Full criminal and civil jurisdiction to the extent permitted by Pub. L. 280 was extended to all fee lands in every Indian reservation and to trust and allotted lands therein when non-Indians were involved. Except for eight categories of law, however, state jurisdiction was not extended to Indians on allotted and trust lands unless the affected tribe so requested. The eight jurisdictional categories of state law that were thus extended to all parts of every Indian reservation were in the areas of compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and motor vehicles.18 The Yakima Indian Nation did not request the full measure of jurisdiction made possible by Chapter 36, and the Yakima Reservation thus became subject to the system of jurisdiction outlined at the outset of this opinion.19 This litigation followed.IIThe Yakima Nation relies on three separate and independent grounds in asserting that Chapter 36 is invalid. First, it argues that under the terms of Pub. L. 280 Washington was not authorized to enact Chapter 36 until the state constitution had been amended by "the people" so as to eliminate its Art. XXVI which disclaimed state authority over Indian lands.20 Second, it contends that Pub. L. 280 does not authorize a State to extend only partial jurisdiction over an Indian reservation. Finally, it asserts that Chapter 36, even if authorized by Pub. L. 280, violates the Fourteenth Amendment of the Constitution. We turn now to consideration of each of these arguments.IIIWe first address the contention that Washington was required to amend its constitution before it could validly legislate under the authority of Pub. L. 280. If the Tribe is correct, we need not consider the statutory and constitutional questions raised by the system of partial jurisdiction established in Chapter 36. The Tribe, supported by the United States as amicus curiae,21 argues that a requirement for popular amendatory action is to be found in the express terms of 6 of Pub. L. 280 or, if not there, in the terms of the Enabling Act that admitted Washington to the Union.22 The argument can best be understood in the context of the specific statutory provisions involved.AThe Enabling Act under which Washington, along with the States of Montana, North Dakota, and South Dakota, gained entry into the Union, was passed in 1889.23 Section 4 of that Act required the constitutional conventions of the prospective new States to enact provisions by which the people disclaimed title to lands owned by Indians or Indian tribes and acknowledged that those lands were to remain "under the absolute jurisdiction and control of" Congress until the Indian or United States title had been extinguished. The disclaimers were to be made "by ordinances irrevocable without the consent of the United States and the people of said States." Washington's constitutional convention enacted the disclaimer of authority over Indian lands as part of Art. XXVI of the state constitution.24 That Article, captioned "Compact with the United States," is prefaced with the statement - precisely tracking the language of the admitting statute - that "the following ordinance shall be irrevocable without the consent of the United States and the people of [the State of Washington]." Its substantive terms mirror the language used in the enabling legislation.We have already noted that two distinct provisions of Pub. L. 280 are potentially applicable to States not granted an immediate cession of jurisdiction. The first, 6, without question applies to Washington and the seven other States admitted into the Union under enabling legislation requiring organic law disclaimers similar to that just described. This much is clear from the legislative history of Pub. L. 280,25 as well as from the express language of 6. That section provides "Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be." All other States were covered by 7. In that section Congress gave the consent of the United States"to any other State ... to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof." These provisions appear to establish different modes of procedure by which an option State, depending on which section applies to it, is to accept the Pub. L. 280 jurisdictional offer. The procedure specified in 7 is straightforward: affirmative legislative action by which the State obligates and binds itself to assume jurisdiction. Section 6, in contrast, is delphic. The only procedure mentioned is action by the people "to amend ... their State constitutions or existing statutes, as the case may be" to remove any legal impediments to the assumption of jurisdiction. The phrase "where necessary" in the main clause suggests that a requirement for popular - as opposed to legislative - action must be found if at all in some source of law independent of Pub. L. 280. The proviso, however, has a different import.BThe proper construction to be given to the single inartful sentence in 6 has provoked chapters of argument from the parties. The Tribe and the United States urge that notwithstanding the phrase "where necessary," 6 should be construed to mandate constitutional amendment by disclaimer States. It is their position that 6 operates not only to grant the consent of the United States to state action inconsistent with the terms of the enabling legislation but also to establish a distinct procedure to be followed by Enabling Act States. To support their position, they rely on the language of the proviso and upon certain legislative history of 6.26 In the alternative, the Tribe and the United States argue that popular amendatory action, if not compelled by the terms of 6, is mandated by the terms of the Enabling Act of Feb. 22, 1889, ch. 180, 4. Although they acknowledge that Congress in 6 did grant the "consent of the United States" required under the Enabling Act before the State could remove the disclaimer, they contend that 6 did not eliminate the need for the "consent of the people" specified in the Enabling Act. In their view, the 1889 Act - if not Pub. L. 280 - dictates that constitutional amendment is the only valid procedure by which that consent can be given.The State draws an entirely different message from 6. It contends that the section must be construed in light of the overall congressional purpose to facilitate a transfer of jurisdiction to those option States willing to accept the responsibility. Section 6 was designed, it says, not to establish but to remove legal barriers to state action under the authority of Pub. L. 280. The phrase "where necessary" in its view is consistent with this purpose. It would construe the word "appropriately" in the proviso to be synonymous with "where necessary" and the entire section to mean that constitutional amendment is required only if "necessary" as a matter of state law. The Washington Supreme Court having found that legislative action is sufficient to grant the "consent of the people" to removal of the disclaimer in Art. XXVI of the state constitution,27 the State argues that the procedural requirements of 6 have been fully satisfied. It finds the Enabling Act irrelevant since in its view 6 effectively repealed any federal-law impediments in that Act to state assertion of jurisdiction under Pub. L. 280.28 CFrom our review of the statutory, legislative, and historical materials cited by the parties, we are persuaded that Washington's assumption of jurisdiction by legislative action fully complies with the requirements of 6. Although we adhere to the principle that the procedural requirements of Pub. L. 280 must be strictly followed, Kennerly v. District Court of Montana, ; McClanahan v. Arizona State Tax Comm'n, 411 U.S., at 180, and to the general rule that ambiguities in legislation affecting retained tribal sovereignty are to be construed in favor of the Indians, see, e. g., Bryan v. Itasca County, 426 U.S., at 392, those principles will not stretch so far as to permit us to find a federal requirement affecting the manner in which the States are to modify their organic legislation on the basis of materials that are essentially speculative. Cf. Board of County Comm'rs v. United States, . The language of 6, its legislative history, and its role in Pub. L. 280 all clearly point the other way.We turn first to the language of 6. The main clause is framed in permissive, not mandatory, terms. Had the drafters intended by that clause to require popular amendatory action, it is unlikely that they would have included the words "where necessary." As written, the clause suggests that the substantive requirement for constitutional amendment must be found in some source of law independent of 6. The basic question, then, is whether that requirement can be found in the language of the proviso to 6 or alternatively in the terms of the Enabling Act.We are unable to find the procedural mandate missing from the main clause of 6 in the language of the proviso. That language in the abstract could be read to suggest that constitutional amendment is a condition precedent to a valid assumption of jurisdiction by disclaimer States. When examined in its context, however, it cannot fairly be read to impose such a condition. Two considerations prevent this reading. First, it is doubtful that Congress - in order to compel disclaimer States to amend their constitutions by popular vote - would have done so in a provision the first clause of which consents to that procedure "where necessary" and the proviso to which indicates that the procedure is to be followed if "appropriate." Second, the reference to popular amendatory action in the proviso is not framed as a description of the procedure the States must follow to assume jurisdiction, but instead is written as a condition to the effectiveness of "the provisions of" Pub. L. 280. When it is recalled that the only substantive provisions of the Act - other than those arguably to be found in 7 - accomplish an immediate transfer of jurisdiction to specifically named States, it seems most likely that the proviso was included to ensure that 6 would not be construed to effect an immediate transfer to the disclaimer group of option States. The main clause removes a federal-law barrier to any new state jurisdiction over Indian country. The proviso suggests that disclaimer States are not automatically to receive jurisdiction by virtue of that removal. Without the proviso, in the event that state constitutional amendment were not found "necessary,"29 6 could be construed as effecting an immediate cession. Congress clearly wanted all the option States to "obligate and bind" themselves to assume the jurisdiction offered in Pub. L. 280.30 To be sure, constitutional amendment was referred to as the process by which this might be accomplished in disclaimer States. But, given the distinction that Congress clearly drew between those States and automatic-transfer States, this reference can hardly be construed to require that process.Before turning to the legislative history, which, as we shall see, accords with this interpretation of 6, we address the argument that popular amendatory action, if not a requirement of Pub. L. 280, is mandated by the legislation admitting Washington to the Union. This argument requires that two assumptions be made. The first is that 6 eliminated some but preserved other Enabling Act barriers to a State's assertion of jurisdiction over Indian country. The second is that the phrase "where necessary" in the main clause of 6 was intended to refer to those federal-law barriers that had been preserved. Only if each of these premises is accepted does the Enabling Act have any possible application.Since we find the first premise impossible to accept, we proceed no further. Admitting legislation is, to be sure, the only source of law mentioned in the main clause of 6 and might therefore be looked to as a referent for the phrase "where necessary" in the clause. This reading, however, is not tenable. It supplies no satisfactory answer to the question why Congress - in order to give the consent of the United States to the removal of state organic law disclaimers - would not also have by necessary implication consented to the removal of any procedural constraints on the States imposed by the Enabling Acts. The phrase "[n]otwithstanding the provisions of any Enabling Act" in 6 is broad - broad enough to suggest that Congress when it referred to a possible necessity for state constitutional amendment did not intend thereby to perpetuate any such requirement in an Enabling Act. Even assuming that the phrase "consent of the people" in the Enabling Act must be construed to preclude consent by legislative action - and the Tribe and the United States have offered no concrete authority to support this restrictive reading of the phrase - 31 we think it obvious that in the "notwithstanding" clause of 6 Congress meant to remove any federal impediments to state jurisdiction that may have been created by an Enabling Act.The legislative history of Pub. L. 280 supports the conclusion that 6 did not of its own force establish a state constitutional amendment requirement and did not preserve any such requirement that might be found in an Enabling Act. Public Law 280 was the first jurisdictional bill of general applicability ever to be enacted by Congress. It reflected congressional concern over the law-and-order problems on Indian reservations and the financial burdens of continued federal jurisdictional responsibilities on Indian lands, Bryan v. Itasca County, . It was also, however, without question reflective of the general assimilationist policy followed by Congress from the early 1950's through the late 1960's.32 See H. R. Rep. No. 848, 83d Cong., 1st Sess. (1953). See also Hearings on H. R. 459, H. R. 3235, and H. R. 3624 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 82d Cong., 2d Sess. (1952) (hereinafter 1952 Hearings). The failure of Congress to write a tribal-consent provision into the transfer provision applicable to option States as well as its failure to consult with the tribes during the final deliberations on Pub. L. 280 provide ample evidence of this.33 Indeed, the circumstances surrounding the passage of Pub. L. 280 in themselves fully bear out the State's general thesis that Pub. L. 280 was intended to facilitate, not to impede, the transfer of jurisdictional responsibility to the States. Public Law 280 originated in a series of individual bills introduced in the 83d Congress to transfer jurisdiction to the five willing States which eventually were covered in 2 and 4.34 H. R. Rep. No. 848, supra. Those bills were consolidated into H. R. 1063, which was referred to the House Committee on Interior and Insular Affairs for consideration. Closed hearings on the bills were held before the Subcommittee on Indian Affairs on June 29 and before the Committee on July 15, 1953.35 During the opening session on June 29, Committee Members, counsel, and representatives of the Department of the Interior discussed various proposals designed to give H. R. 1063 general applicability. June 29 Hearings 1-22. It rapidly became clear that the Members favored a general bill. Ibid. At this point, Committee counsel noted that several States "have constitutional prohibitions against jurisdiction." Id., at 23. There followed some discussion of the manner in which these States should be treated. On July 15, a version of 6 was proposed. July 15 Hearings 6. After further discussion of the disclaimer problem, the "notwithstanding" clause was added, id., at 9, and the language eventually enacted as 6 was approved by the Committee that day. The speed and the context alone suggest that 6 was designed to remove an obstacle to state jurisdiction, not to create one. And the discussion at the hearings, which in essence were markup sessions, makes this clear.36 While some Committee Members apparently thought that 6 States, as a matter of state law, would have to amend their constitutions in order to remove the disclaimers found there,37 there is no indication that the Committee intended to impose any such requirement.38 We conclude that 6 of Pub. L. 280 does not require disclaimer States to amend their constitutions to make an effective acceptance of jurisdiction. We also conclude that any Enabling Act requirement of this nature was effectively repealed by 6. If as a matter of state law a constitutional amendment is required, that procedure must - as a matter of state law - be followed. And if under state law a constitutional amendment is not required, disclaimer States must still take positive action before Pub. L. 280 jurisdiction can become effective. The Washington Supreme Court having determined that for purposes of the repeal of Art. XXVI of the Washington Constitution legislative action is sufficient,39 and appropriate state legislation having been enacted, it follows that the State of Washington has satisfied the procedural requirements of 6.IVWe turn to the question whether the State was authorized under Pub. L. 280 to assume only partial subject-matter and geographic jurisdiction over Indian reservations within the State.40 The argument that Pub. L. 280 does not permit this scheme of partial jurisdiction relies primarily upon the text of the federal law. The main contention of the Tribe and the United States is that partial jurisdiction, because not specifically authorized, must therefore be forbidden. In addition, they assert that the interplay between the provisions of Pub. L. 280 demonstrates that 6 States are required, if they assume any jurisdiction, to assume as much jurisdiction as was transferred to the mandatory States.41 Pointing out that 18 U.S.C. 1151 defines Indian country for purposes of federal jurisdiction as including an entire reservation notwithstanding "the issuance of any patent," they reason that when Congress in 2 transferred to the mandatory States "criminal jurisdiction" over "offenses committed by or against Indians in the Indian country," it meant that all parts of Indian country were to be covered. Similarly, they emphasize that civil jurisdiction of comparable scope was transferred to the mandatory States. They stress that in both 2 and 4, the consequence of state assumption of jurisdiction is that the state "criminal laws" and "civil laws of ... general application" are henceforth to "have the same force and effect within ... Indian country as they have elsewhere within the State." Finally, the Tribe and the United States contend that the congressional purposes of eliminating the jurisdictional hiatus thought to exist on Indian reservations, of reducing the cost of the federal responsibility for jurisdiction on tribal lands, and of assimilating the Indian tribes into the general state population are disserved by the type of checkerboard arrangement permitted by Chapter 36.We agree, however, with the State of Washington that statutory authorization for the state jurisdictional arrangement is to be found in the very words of 7. That provision permits option States to assume jurisdiction "in such manner" as the people of the State shall "by affirmative legislative action, obligate and bind the State to assumption thereof." Once the requirements of 6 have been satisfied, the terms of 7 appear to govern the scope of jurisdiction conferred upon disclaimer States. The phrase "in such manner" in 7 means at least that any option State can condition the assumption of full jurisdiction on the consent of an affected tribe. And here Washington has done no more than refrain from exercising the full measure of allowable jurisdiction without consent of the tribe affected.Section 6, as we have seen, was placed in the Act to eliminate possible organic law barriers to the assumption of jurisdiction by disclaimer States. The Tribe and the United States acknowledge that it is a procedural, not a substantive, section. The clause contains only one reference of relevance to the partial-jurisdiction question. This is the phrase "assumption of civil and criminal jurisdiction in accordance with the provisions of this Act." As both parties recognize, this phrase necessarily leads to other "provisions" of the Act for clarification of the substantive scope of the jurisdictional grant. The first question then is which other "provisions" of the Act govern. The second is what constraints those "provisions" place on the jurisdictional arrangements made by option States.The Tribe argues as an initial matter that 7 is not one of the "provisions" referred to by 6. It relies in part upon the contrast between the phrase "assumption of civil and criminal jurisdiction" in 6 and the disjunctive phrase "criminal offenses or civil causes of action" in 7. From this distinction between the "civil and criminal jurisdiction" language of 6 and the optional language in 7, we are asked to conclude that 6 States must assume full jurisdiction in accord with the terms applicable to the mandatory States even though 7 States are permitted more discretion. We are unable to accept this argument, not only because the statutory language does not fairly support it, but also because the legislative history is wholly to the contrary. It is clear from the Committee hearings that the States covered by 6 were, except for the possible impediments contained in their organic laws, to be treated on precisely the same terms as option States.42 Section 6, as we have seen, was essentially an afterthought designed to accomplish the limited purpose of removing any barrier to jurisdiction posed by state organic law disclaimers of jurisdiction over Indians. All option States were originally treated under the aegis of 7.43 The record of the Committee hearings makes clear that the sole purpose of 6 was to resolve the disclaimer problem.44 Indeed, to the extent that the Tribe and the United States suggest that disclaimer States stand on a different footing from all other option States, their argument makes no sense. It would ascribe to Congress an intent to require States that by force of organic law barriers may have had only a limited involvement with Indian country to establish the most intrusive presence possible on Indian reservations, if any at all, and at the same time an intent to allow States with different traditions to exercise more restraint in extending the coverage of their law.The Tribe and the United States urge that even if, as we have concluded, all option States are ultimately governed by 7, the reference in that section to assumption of jurisdiction "as provided for in [the] Act" should be construed to mean that the automatic-transfer provisions of 2 and 4 must still apply. The argument would require a conclusion that the option States stand on the same footing as the mandatory States. This view is not persuasive. The mandatory States were consulted prior to the introduction of the single-state bills that were eventually to become Pub. L. 280. All had indicated their willingness to accept whatever jurisdiction Congress was prepared to transfer. This, however, was not the case with the option States. Few of those States had been consulted, and from the June 29 and July 15 hearings it is apparent that the drafters were primarily concerned with establishing a general transfer scheme that would facilitate, not impede, future action by other States willing to accept jurisdiction. It is clear that the all-or-nothing approach suggested by the Tribe would impede even the most responsible and sensitive jurisdictional arrangements designed by the States. To find that under Pub. L. 280 a State could not exercise partial jurisdiction, even if it were willing to extend full jurisdiction at tribal request, would be quite inconsistent with this basic history.The language of 7, which we have found applicable here, provides, we believe, surer guidance to the issue before us.45 The critical language in 7 is the phrase permitting the assumption of jurisdiction "at such time and in such manner as the people of the State shall ... obligate and bind the State to assumption thereof." Whether or not "in such manner" is fully synonymous with "to such extent," the phrase is at least broad enough to authorize a State to condition the extension of full jurisdiction over an Indian reservation on the consent of the tribe affected.The United States argues that a construction of Pub. L. 280 which permits selective extension of state jurisdiction allows a State to "pick and choose" only those subject-matter areas and geographical parts of reservations over which it would like to assume responsibility. Congress, we are told, passed Pub. L. 280 not as a measure to benefit the States, but to reduce the economic burdens associated with federal jurisdiction on reservations, to respond to a perceived hiatus in law enforcement protections available to tribal Indians, and to achieve an orderly assimilation of Indians into the general population. That these were the major concerns underlying the passage of Pub. L. 280 cannot be doubted. See Bryan v. Itasca County, 426 U.S., at 379.But Chapter 36 does not reflect an attempt to reap the benefits and to avoid the burdens of the jurisdictional offer made by Congress. To the contrary, the State must assume total jurisdiction whenever a tribal request is made that it do so. Moreover, the partial geographic and subject-matter jurisdiction that exists in the absence of tribal consent is responsive to the law enforcement concerns that underlay the adoption of Pub. L. 280. State jurisdiction is complete as to all non-Indians on reservations and is also complete as to Indians on nontrust lands. The law enforcement hiatus that preoccupied the 83d Congress has to that extent been eliminated. On trust and restricted lands within the reservations whose tribes have not requested the coverage of state law, jurisdiction over crimes by Indians is, as it was when Pub. L. 280 was enacted, shared by the tribal and Federal Governments. To the extent that this shared federal and tribal responsibility is inadequate to preserve law and order, the tribes need only request and they will receive the protection of state law.The State of Washington in 1963 could have unilaterally extended full jurisdiction over crimes and civil causes of action in the entire Yakima Reservation without violating the terms of Pub. L. 280. We are unable to conclude that the State, in asserting a less intrusive presence on the Reservation while at the same time obligating itself to assume full jurisdictional responsibility upon request, somehow flouted the will of Congress. A State that has accepted the jurisdictional offer in Pub. L. 280 in a way that leaves substantial play for tribal self-government, under a voluntary system of partial jurisdiction that reflects a responsible attempt to accommodate the needs of both Indians and non-Indians within a reservation, has plainly taken action within the terms of the offer made by Congress to the States in 1953. For Congress surely did not deny an option State the power to condition its offer of full jurisdiction on tribal consent.VHaving concluded that Chapter 36 violates neither the procedural nor the substantive terms of Pub. L. 280, we turn, finally, to the question whether the "checkerboard" pattern of jurisdiction applicable on the reservations of nonconsenting tribes is on its face invalid under the Equal Protection Clause of the Fourteenth Amendment.46 The Court of Appeals for the Ninth Circuit concluded that it is, reasoning that the land-title classification is too bizarre to meet "any formulation of the rational basis test." 552 F.2d, at 1335. The Tribe advances several different lines of argument in defense of this ruling.First, it argues that the classifications implicit in Chapter 36 are racial classifications, "suspect" under the test enunciated in McLaughlin v. Florida, , and that they cannot stand unless justified by a compelling state interest. Second, it argues that its interest in self-government is a fundamental right, and that Chapter 36 - as a law abridging this right - is presumptively invalid. Finally, the Tribe argues that Chapter 36 is invalid even if reviewed under the more traditional equal protection criteria articulated in such cases as Massachusetts Bd. of Retirement v. Murgia, .47 We agree with the Court of Appeals to the extent that its opinion rejects the first two of these arguments and reflects a judgment that Chapter 36 must be sustained against an Equal Protection Clause attack if the classifications it employs "rationally furthe[r] the purpose identified by the State." Massachusetts Bd. of Retirement v. Murgia, supra, at 314. It is settled that "the unique legal status of Indian tribes under federal law" permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. Morton v. Mancari, . States do not enjoy this same unique relationship with Indians, but Chapter 36 is not simply another state law. It was enacted in response to a federal measure explicitly designed to readjust the allocation of jurisdiction over Indians. The jurisdiction permitted under Chapter 36 is, as we have found, within the scope of the authorization of Pub. L. 280. And many of the classifications made by Chapter 36 are also made by Pub. L. 280. Indeed, classifications based on tribal status and land tenure inhere in many of the decisions of this Court involving jurisdictional controversies between tribal Indians and the States, see, e. g., United States v. McBratney, . For these reasons, we find the argument that such classifications are "suspect" an untenable one. The contention that Chapter 36 abridges a "fundamental right" is also untenable. It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes. See, e. g., United States v. Wheeler, . In enacting Chapter 36, Washington was legislating under explicit authority granted by Congress in the exercise of that federal power.48 The question that remains, then, is whether the lines drawn by Chapter 36 fail to meet conventional Equal Protection Clause criteria, as the Court of Appeals held. Under those criteria, legislative classifications are valid unless they bear no rational relationship to the State's objectives. Massachusetts Bd. of Retirement v. Murgia, supra, at 314. State legislation "does not violate the Equal Protection Clause merely because the classifications [it makes] are imperfect." Dandridge v. Williams, . Under these standards we have no difficulty in concluding that Chapter 36 does not offend the Equal Protection Clause.The lines the State has drawn may well be difficult to administer. But they are no more or less so than many of the classifications that pervade the law of Indian jurisdiction. See Seymour v. Superintendent, ; Moe v. Salish & Kootenai Tribes, . Chapter 36 is fairly calculated to further the State's interest in providing protection to non-Indian citizens living within the boundaries of a reservation while at the same time allowing scope for tribal self-government on trust or restricted lands. The land-tenure classification made by the State is neither an irrational nor arbitrary means of identifying those areas within a reservation in which tribal members have the greatest interest in being free of state police power. Indeed, many of the rules developed in this Court's decisions in cases accommodating the sovereign rights of the tribes with those of the States are strikingly similar. See, e. g., United States v. McBratney, supra; Draper v. United States, ; Williams v. Lee, ; McClanahan v. Arizona State Tax Comm'n, . In short, checkerboard jurisdiction is not novel in Indian law, and does not, as such, violate the Constitution.For the reasons set out in this opinion, the judgment of the Court of Appeals is reversed. It is so ordered. |
2 | Respondent Village of Stratton (Village) promulgated an ordinance that, inter alia, prohibits "canvassers" from "going in and upon" private residential property to promote any "cause" without first obtaining a permit from the mayor's office by completing and signing a registration form. Petitioners, a society and a congregation of Jehovah's Witnesses that publish and distribute religious materials, brought this action for injunctive relief, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations, although it did require the Village to accept narrowing constructions of several provisions. The Sixth Circuit affirmed. Among its rulings, that court held that the ordinance was content neutral and of general applicability and therefore subject to intermediate scrutiny; rejected petitioners' argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that was recognized in McIntyre v. Ohio Elections Comm'n, 514 U. S. 334; concluded that the Village's interests in protecting its residents from fraud and undue annoyance and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation; and distinguished this Court's earlier cases protecting the Jehovah's Witnesses ministry. Held: The ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. Pp. 9-18. (a) For over 50 years, this Court has invalidated on First Amendment grounds restrictions on door-to-door canvassing and pamphleteering by Jehovah's Witnesses. See, e.g., Murdock v. Pennsylvania, 319 U. S. 105. Although those cases do not directly control the question at issue, they yield several themes that guide the Court. Among other things, those cases emphasize that the hand distribution of religious tracts is ages old and has the same claim as more orthodox practices to the guarantees of freedom of religion, speech, and press, e.g., id., at 109; discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas, e.g., Schneider v. State (Town of Irvington), 308 U. S. 147, 164, but recognize the legitimate interests a town may have in some form of regulation, particularly when the solicitation of money is involved, e.g., Cantwell v. Connecticut, 310 U. S. 296, 306, or the prevention of burglary is a legitimate concern, Martin v. City of Struthers, 319 U. S. 141, 144; make clear that there must be a balance between such interests and the effect of the regulations on First Amendment rights; e.g., ibid.; and demonstrate that the Jehovah's Witnesses have not struggled for their rights alone, but for those many who are poorly financed and rely extensively upon this method of communication, see, e.g., id., at 144-146, including nonreligious groups and individuals, see, e.g., Thomas v. Collins, 323 U. S. 516, 539-540. Pp. 9-13. (b) The Court need not resolve the parties' dispute as to what standard of review to use here because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Sixth Circuit erred in upholding it. There is no doubt that the interests the ordinance assertedly serves — the prevention of fraud and crime and the protection of residents' privacy — are important and that the Village may seek to safeguard them through some form of regulation of solicitation activity. However, the amount of speech covered by the ordinance raises serious concerns. Had its provisions been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village's interest in protecting its residents' privacy and preventing fraud. Yet, the Village's administration of its ordinance unquestionably demonstrates that it applies to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." The pernicious effect of the permit requirement is illustrated by, e.g., the requirement that a canvasser be identified in a permit application filed in the mayor's office and made available for public inspection, which necessarily results in a surrender of the anonymity this Court has protected. Also central to the Court's conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village's argument that the ordinance is nonetheless valid because it serves the two additional interests of protecting residents' privacy and the prevention of crime is unpersuasive. As to the former, an unchallenged ordinance section authorizing residents to post "No Solicitation" signs, coupled with their unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for unwilling listeners. As to the latter, it seems unlikely that the lack of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance, and, in any event, there is no evidence in the record of a special crime problem related to door-to-door solicitation. Pp. 13-18.240 F. 3d 553, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which Souter and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Rehnquist, C. J., filed a dissenting opinion.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al., PETITIONERS v. VILLAGE OF STRATTON et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 17, 2002] Justice Stevens delivered the opinion of the Court. Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door advocacy with-out first registering with the mayor and receiving a per-mit violates the First Amendment. Through this facial challenge, we consider the door-to-door canvassing regu-lation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills.I Petitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities of Jehovah's Witnesses throughout the United States and publishes Bibles and religious periodicals that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc., supervises the activities of approximately 59 members in a part of Ohio that includes the Village of Stratton (Village). Petitioners offer religious literature without cost to anyone interested in reading it. They allege that they do not solicit contributions or orders for the sale of merchandise or services, but they do accept donations. Petitioners brought this action against the Village and its mayor in the United States District Court for the Southern District of Ohio, seeking an injunction against the enforcement of several sections of OrdinanceNo. 1998-5 regulating uninvited peddling and solicitation on private property in the Village. Petitioners' complaint alleged that the ordinance violated several constitutional rights, including the free exercise of religion, free speech, and the freedom of the press. App. 10a-44a. The District Court conducted a bench trial at which evidence of the administration of the ordinance and its effect on petitioners was introduced. Section 116.01 prohibits "canvassers" and others from "going in and upon" private residential property for the purpose of promoting any "cause" without first having obtained a permit pursuant to §116.03.1 That section provides that any canvasser who intends to go on private property to promote a cause, must obtain a "Solicitation Permit" from the office of the mayor; there is no charge for the permit, and apparently one is issued routinely after an applicant fills out a fairly detailed "Solicitor's Registration Form."2 The canvasser is then authorized to go upon premises that he listed on the registration form, but he must carry the permit upon his person and exhibit it whenever requested to do so by a police officer or by a resident.3 The ordinance sets forth grounds for the denial or revocation of a permit,4 but the record before us does not show that any application has been denied or that any permit has been revoked. Petitioners did not apply for a permit. A section of the ordinance that petitioners do not challenge establishes a procedure by which a resident may prohibit solicitation even by holders of permits. If the resident files a "No Solicitation Registration Form" with the mayor, and also posts a "No Solicitation" sign on his property, no uninvited canvassers may enter his property, unless they are specifically authorized to do so in the "No Solicitation Registration Form" itself.5 Only 32 of the Village's 278 residents filed such forms. Each of the forms in the record contains a list of 19 suggested exceptions;6 on one form, a resident checked 17 exceptions, thereby excluding only "Jehovah's Witnesses" and "Political Candidates" from the list of invited canvassers. Although Jehovah's Witnesses do not consider themselves to be "solicitors" because they make no charge for their literature or their teaching, leaders of the church testified at trial that they would honor "no solicitation" signs in the Village. They also explained at trial that they did not apply for a permit because they derive their authority to preach from Scripture.7 "For us to seek a permit from a municipality to preach we feel would almost be an insult to God." App. 321a. Petitioners introduced some evidence that the ordinance was the product of the mayor's hostility to their ministry, but the District Court credited the mayor's testimony that it had been designed to protect the privacy rights of the Village residents, specifically to protect them "from `flim flam' con artists who prey on small town populations." 61 F. Supp. 2d 734, 736 (SD Ohio 1999). Nevertheless, the court concluded that the terms of the ordinance applied to the activities of petitioners as well as to "business or political canvassers," id., at 737, 738. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that did not infringe on petitioners' First Amendment rights. The court did, however, require the Village to accept narrowing constructions of three provisions. First, the court viewed the requirement in §116.03(b)(5) that the applicant must list the specific address of each residence to be visited as potentially invalid, but cured by the Village's agreement to attach to the form a list of willing residents. Id., at 737. Second, it held that petitioners could comply with §116.03(b)(6) by merely stating their purpose as "the Jehovah's Witness ministry." Id., at 738. And third, it held that §116.05, which limited canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision referring to "reasonable hours of the day." Id., at 739. As so modified, the court held the ordinance constitutionally valid as applied to petitioners and dismissed the case. The Court of Appeals for the Sixth Circuit affirmed. 240 F. 3d 553 (2001). It held that the ordinance was "content neutral and of general applicability and therefore subject to intermediate scrutiny." Id., at 560. It rejected petitioners' reliance on the discussion of laws affecting both the free exercise of religion and free speech in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990),8 because that "language was dicta and therefore not binding." 240 F. 3d, at 561. It also rejected petitioners' argument that the ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we recognized in McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995), reasoning that "the very act of going door-to-door requires the canvassers to reveal a portion of their identities." 240 F. 3d, at 563. The Court of Appeals concluded that the interests promoted by the Village--"protecting its residents from fraud and undue annoyance"--as well as the harm that it seeks to prevent--"criminals posing as canvassers in order to defraud its residents"--though"by no means overwhelming," were sufficient to justify the regulation. Id., at 565-566. The court distinguished earlier cases protecting the Jehovah's Witnesses ministry because those cases either involved a flat prohibition on the dissemination of ideas, e.g., Martin v. City of Struthers, 319 U. S. 141 (1943), or an ordinance that left the issuance of a permit to the discretion of a municipal officer, see, e.g., Cantwell v. Connecticut, 310 U. S. 296, 302 (1940). In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the permit requirements, the ordinance significantly restricted a substantial quantity of speech unrelated to the Village's interest in eliminating fraud and unwanted annoyance. In his view, the Village "failed to demonstrate either the reality of the harm or the efficacy of the restriction." 240 F. 3d, at 572. We granted certiorari to decide the following question: "Does a municipal ordinance that requires one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or dis-course?" 534 U. S. 971 (2001); Pet. for Cert. i.9II For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering.10 It is more than historical accident that most of these cases involved First Amendment challenges brought by Jehovah's Witnesses, because door-to-door canvassing is mandated by their religion. As we noted in Murdock v. Pennsylvania, 319 U. S. 105, 108 (1943), the Jehovah's Witnesses "claim to follow the example of Paul, teaching `publicly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, `Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God." Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize is seriously diminished by regulations that burden their efforts to canvass door-to-door. Although our past cases involving Jehovah's Witnesses, most of which were decided shortly before and during World War II, do not directly control the question we confront today, they provide both a historical and analytical backdrop for consideration of petitioners' First Amendment claim that the breadth of the Village's ordinance offends the First Amendment.11 Those cases involved petty offenses that raised constitutional questions of the most serious magnitude — questions that implicated the free exercise of religion, the freedom of speech, andthe freedom of the press. From these decisions, several themes emerge that guide our consideration of the ordinance at issue here. First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania, the Court noted that "hand distribution of religious tracts is an age-old form of missionary evangelism — as old as the history of printing presses. It has been a potent force in various religious movements down through the years... . This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press." 319 U. S., at 109. In addition, the cases discuss extensively the historical importance of door-to-door canvassing and pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington), 308 U. S. 147 (1939), the petitioner was a Jehovah's Witness who had been convicted of canvassing without a permit based on evidence that she had gone from house to house offering to leave books or booklets. Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of individuals is their distribution at the homes of the people. On this method of communication the ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees." Id., at 164 (emphasis added). Despite the emphasis on the important role that door-to-door canvassing and pamphleteering has played in our constitutional tradition of free and open discussion, these early cases also recognized the interests a town may have in some form of regulation, particularly when the solicitation of money is involved. In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court held that an ordinance requiring Jehovah's Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the license depended on the exercise of discretion by a city official. Our opinion recognized that "a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." Id., at 306. Similarly, in Martin v. City of Struthers, the Court recognized crime prevention as a legitimate interest served by these ordinances and noted that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." 319 U. S., at 144. Despite recognition of these interests as legitimate, our precedent is clear that there must be a balance between these interests and the effect of the regulations on First Amendment rights. We "must `be astute to examine the effect of the challenged legislation' and must `weigh the circumstances and ... appraise the substantiality of the reasons advanced in support of the regulation.' " Ibid. (quoting Schneider, 308 U. S., at 161). Finally, the cases demonstrate that efforts of the Jehovah's Witnesses to resist speech regulation have not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely extensively upon this method of communication, the Court summarized that "[d]oor to door distribution of circulars is essential to the poorly financed causes of little people." 319 U. S., at 144-146. That the Jehovah's Witnesses are not the only "little people" who face the risk of silencing by regulations like the Village's is exemplified by our cases involving nonreligious speech. See, e.g., Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980); Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Thomas v. Collins, 323 U. S. 516 (1945). In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases discussed above, the Court observed: "As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly... .... . . "If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." Id., at 539-540. Although these World War II-era cases provide guidance for our consideration of the question presented, they do not answer one preliminary issue that the parties adamantly dispute. That is, what standard of review ought we use in assessing the constitutionality of this ordinance. We find it unnecessary, however, to resolve that dispute because the breadth of speech affected by the ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.III The Village argues that three interests are served by its ordinance: the prevention of fraud, the prevention of crime, and the protection of residents' privacy. We have no difficulty concluding, in light of our precedent, that these are important interests that the Village may seek to safeguard through some form of regulation of solicitation activity. We must also look, however, to the amount of speech covered by the ordinance and whether there is an appropriate balance between the affected speech and the governmental interests that the ordinance purports to serve. The text of the Village's ordinance prohibits "canvassers" from going on private property for the purpose of explaining or promoting any "cause," unless they receive a permit and the residents visited have not opted for a "no solicitation" sign. Had this provision been construed to apply only to commercial activities and the solicitation of funds, arguably the ordinance would have been tailored to the Village's interest in protecting the privacy of its residents and preventing fraud. Yet, even though the Village has explained that the ordinance was adopted to serve those interests, it has never contended that it should be so narrowly interpreted. To the contrary, the Village's administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." Indeed, on the "No Solicitation Forms" provided to the residents, the canvassers include "Camp Fire Girls," "Jehovah's Witnesses," "Political Candidates," "Trick or Treaters during Halloween Season," and "Persons Affiliated with Stratton Church." The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to "residents casually soliciting the votes of neighbors,"12 or ringing doorbells to enlist support for employing a more efficient garbage collector. The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive — not only to the values protected by the First Amendment, but to the very notion of a free society — that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious effect of such a permit requirement. First, as our cases involving distribution of unsigned handbills demonstrate,13 there are a significant number of persons who support causes anonymously.14 "The decision to favor anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." McIntyre v. Ohio Elections Comm'n, 525 U. S. 182 (1999). The badge requirement that we invalidated in Buckley applied to petition circulators seeking signatures in face-to-face interactions. The fact that circulators revealed their physical identities did not foreclose our consideration of the circulators' interest in maintaining their anonymity. In the Village, strangers to the resident certainly maintain their anonymity, and the ordinance may preclude such persons from canvassing for unpopular causes. Such preclusion may well be justified in some situations — for example, by the special state interest in protecting the integrity of a ballot-initiative process, see ibid., or by the interest in preventing fraudulent commercial transactions. The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to commercial transactions or to any special interest in protecting the electoral process. Second, requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official. Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance. A person who made a decision on a holiday or a weekend to take an active part in a political campaign could not begin to pass out handbills until after he or she obtained the required permit. Even a spontaneous decision to go across the street and urge a neighbor to vote against the mayor could not lawfully be implemented without first obtaining the mayor's permission. In this respect, the regulation is analogous to the circulation licensing tax the Court invalidated in Grosjean v. American Press Co., 297 U. S. 233 (1936). In Grosjean, while discussing the history of the Free Press Clause of the First Amendment, the Court stated that " `[t]he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.' " Id., at 249-250 (quoting 2T. Cooley, Constitutional Limitations 886 (8th ed. 1927)); see also Lovell v. City of Griffin, 303 U. S. 444 (1938). The breadth and unprecedented nature of this regulation does not alone render the ordinance invalid. Also central to our conclusion that the ordinance does not pass First Amendment scrutiny is that it is not tailored to the Village's stated interests. Even if the interest in preventing fraud could adequately support the ordinance insofar as it applies to commercial transactions and the solicitation of funds, that interest provides no support for its application to petitioners, to political campaigns, or to enlisting support for unpopular causes. The Village, however, argues that the ordinance is nonetheless valid because it serves the two additional interests of protecting the privacy of the resident and the prevention of crime. With respect to the former, it seems clear that §107 of the ordinance, which provides for the posting of "No Solicitation" signs and which is not challenged in this case, coupled with the resident's unquestioned right to refuse to engage in conversation with unwelcome visitors, provides ample protection for the unwilling listener. Schaumburg, 444 U. S., at 639 ("[T]he provision permitting homeowners to bar solicitors from their property by posting [no solicitation] signs ... suggest[s] the availability of less intrusive and more effective measures to protect privacy"). The annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit. With respect to the latter, it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyers or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant's identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us. The rhetoric used in the World War II-era opinions that repeatedly saved petitioners' coreligionists from petty prosecutions reflected the Court's evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al., PETITIONERS v. VILLAGE OF STRATTON et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 17, 2002] Justice Breyer, with whom Justice Souter and Justice Ginsburg join, concurring. While joining the Court's opinion, I write separately to note that the dissent's "crime prevention" justification for this ordinance is not a strong one. Cf. post, at 6-10 (Rehnquist, C. J.). For one thing, there is no indication that the legislative body that passed the ordinance considered this justification. Stratton did not rely on the rationale in the courts below, see 61 F. Supp. 2d 734, 736 (SD Ohio 1999) (opinion of the District Court describing the ordinance as "constructed to protect the Village residents from `flim flam' con artists"); 240 F. 3d 553, 565 (CA6 2001) (opinion of the Court of Appeals describing interests as "protecting [the Village's] residents from fraud and undue annoyance"), and its general references to "deter[ing] crime" in its brief to this Court cannot fairly be construed to include anything other than the fraud it discusses specifically. Brief for Respondents 14-18. In the intermediate scrutiny context, the Court ordinarily does not supply reasons the legislative body has not given. Cf. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions" (emphasis added)). That does not mean, as The Chief Justice suggests, that only a government with a "battery of constitutional lawyers," post, at 1, could satisfy this burden. It does mean that we expect a government to give its real reasons for passing an ordinance. Legislators, in even the smallest town, are perfectly able to do so — sometimes better on their own than with too many lawyers, e.g., a "battery," trying to offer their advice. I can only conclude that if the village of Stratton thought preventing burglaries and violent crimes was an important justification for this ordinance, it would have said so. But it is not just that. It is also intuitively implausible to think that Stratton's ordinance serves any governmental interest in preventing such crimes. As the Court notes, several categories of potential criminals will remain entirely untouched by the ordinance. Ante, at 17, 2, n. 1. And as to those who might be affected by it, "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 392 (2000). Even less readily should we accept such implausible conjecture offered not by the party itself but only by an amicus, see Brief for Ohio et al. as Amici Curiae 5-6. Because Stratton did not rely on the crime prevention justification, because Stratton has not now "present[ed] more than anecdote and supposition," Playboy Entertainment Group, supra, at 822, and because the relationship between the interest and the ordinance is doubtful, I am unwilling to assume that these conjectured benefits outweigh the cost of abridging the speech covered by the ordinance.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al., PETITIONERS v. VILLAGE OF STRATTON et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 17, 2002] Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. I concur in the judgment, for many but not all of the reasons set forth in the opinion for the Court. I do not agree, for example, that one of the causes of the invalidity of Stratton's ordinance is that some people have a religious objection to applying for a permit, and others (posited by the Court) "have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official." Ante, at 16. If a licensing requirement is otherwise lawful, it is in my view not invalidated by the fact that some people will choose, for religious reasons, to forgo speech rather than observe it. That would convert an invalid free-exercise claim, see Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), into a valid free-speech claim — and a more destructive one at that. Whereas the free-exercise claim, if acknowledged, would merely exempt Jehovah's Witnesses from the licensing requirement, the free-speech claim exempts everybody, thanks to Jehovah's Witnesses. As for the Court's fairy-tale category of "patriotic citizens," ante, at 16, who would rather be silenced than licensed in a manner that the Constitution (but for their "patriotic" objection) would permit: If our free-speech jurisprudence is to be determined by the predicted behavior of such crackpots, we are in a sorry state indeed.WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., et al., PETITIONERS v. VILLAGE OF STRATTON et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 17, 2002] Chief Justice Rehnquist, dissenting. Stratton is a village of 278 people located along the Ohio River where the borders of Ohio, West Virginia, and Pennsylvania converge. It is strung out along a multilane highway connecting it with the cities of East Liverpool to the north and Steubenville and Weirton, West Virginia, to the south. One may doubt how much legal help a village of this size has available in drafting an ordinance such as the present one, but even if it had availed itself of a battery of constitutional lawyers, they would have been of little use in the town's effort. For the Court today ignores the cases on which those lawyers would have relied, and comes up with newly fashioned doctrine. This doctrine contravenes well-established precedent, renders local governments largely impotent to address the very real safety threat that canvassers pose, and may actually result in less of the door-to-door communication that it seeks to protect. More than half a century ago we recognized that canvassers, "whether selling pots or distributing leaflets, may lessen the peaceful enjoyment of a home," and that "burglars frequently pose as canvassers, either in order that they may have a pretense to discover whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises in order that they may return later." Martin v. City of Struthers, 319 U. S. 141, 144 (1943). These problems continue to be associated with door-to-door canvassing, as are even graver ones. A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantop's home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the "survey." They were allowed into the Zantop home. After conducting the phony environmental survey, they stabbed the Zantops to death. See ibid. In order to reduce these very grave risks associated with canvassing, the 278 " `little people,' " ante, at 12, of Stratton, who, unlike petitioners, do not have a team of attorneys at their ready disposal, see Jehovah's Witnesses May Make High Court History Again, Legal Times, Feb. 25, 2002, p. 1 (noting that petitioners have a team of 12 lawyers in their New York headquarters), enacted the ordinance at issue here. The residents did not prohibit door-to-door communication, they simply required that canvassers obtain a permit before going door-to-door. And the village does not have the discretion to reject an applicant who completes the application. The town had little reason to suspect that the negligible burden of having to obtain a permit runs afoul of the First Amendment. For over 60 years, we have categorically stated that a permit requirement for door-to-door canvassers, which gives no discretion to the issuing authority, is constitutional. The District Court and Court of Appeals, relying on our cases, upheld the ordinance. The Court today, however, abruptly changes course and invalidates the ordinance. The Court speaks of the "historical and analytical backdrop for consideration of petitioners' First Amendment claim," ante, at 9. But this "backdrop" is one of longstanding and unwavering approval of a permit requirement like Stratton's. Our early decisions in this area expressly sanction a law that merely requires a canvasser to register. In Cantwell v. Connecticut, 310 U. S. 296, 306 (1940), we stated that "[w]ithout doubt a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent." In Murdock v. Pennsylvania, 319 U. S. 105, 116 (1943), we contrasted the license tax struck down in that case with "merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community." And Martin, supra, at 148, states that a "city can punish those who call at a home in defiance of the previously expressed will of the occupant and, in addition, can by identification devices control the abuse of the privilege by criminals posing as canvassers." It is telling that Justices Douglas and Black, perhaps the two Justices in this Court's history most identified with an expansive view of the First Amendment, authored, respectively, Murdock and Martin. Their belief in the constitutionality of the permit requirement that the Court strikes down today demonstrates just how far the Court's present jurisprudence has strayed from the core concerns of the First Amendment. We reaffirmed our view that a discretionless permit requirement is constitutional in Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976). Hynes, though striking down a registration ordinance on vagueness grounds, noted that "the Court has consistently recognized a municipality's power to protect its citizens from crime and undue annoyance by regulating soliciting and canvassing. A narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear, may serve these important interests without running afoul of the First Amendment." Id., at 616-617. The Stratton ordinance suffers from none of the defects deemed fatal in these earlier decisions. The ordinance does not prohibit door-to-door canvassing; it merely requires that canvassers fill out a form and receive a permit. Cf. Martin, supra. The mayor does not exercise any discretion in deciding who receives a permit; approval of the permit is automatic upon proper completion of the form. Cf. Cantwell, supra. And petitioners do not contend in this Court that the ordinance is vague. Cf. Hynes, supra. Just as troubling as the Court's ignoring over 60 years of precedent is the difficulty of discerning from the Court's opinion what exactly it is about the Stratton ordinance that renders it unconstitutional. It is not clear what test the Court is applying, or under which part of that indeterminate test the ordinance fails. See ante, at 13 (finding it "unnecessary ... to resolve" what standard of review applies to the ordinance). We are instead told that the "breadth of speech affected" and "the nature of the regulation" render the permit requirement unconstitutional. Ante, at 13. Under a straightforward application of the applicable First Amendment framework, however, the ordinance easily passes muster. There is no support in our case law for applying anything more stringent than intermediate scrutiny to the ordinance. The ordinance is content neutral and does not bar anyone from going door-to-door in Stratton. It merely regulates the manner in which one must canvass: A canvasser must first obtain a permit. It is, or perhaps I should say was, settled that the "government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.' " Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984)). Earlier this Term, the Court reaffirmed that this test applies to content-neutral time, place, or manner restrictions on speech in public forums. See Thomas v. Chicago Park Dist., 534 U. S. 316 (2002). The Court suggests that Stratton's regulation of speech warrants greater scrutiny. Ante, at 13. But it would be puzzling if regulations of speech taking place on another citizen's private property warranted greater scrutiny than regulations of speech taking place in public forums. Common sense and our precedent say just the opposite. In Hynes, the Court explained: " `Of all the methods of spreading unpopular ideas, [house-to-house canvassing] seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires.' " 487 U. S. 474, 483-484 (1988). Surely then, intermediate scrutiny applies to a content-neutral regulation of speech that occurs not just near, but at, another citizen's private residence. The Stratton regulation is aimed at three significant governmental interests: the prevention of fraud, the prevention of crime, and the protection of privacy.1 The Court concedes that "in light of our precedent, ... these are important interests that [Stratton] may seek to safeguard through some form of regulation of solicitation activity." Ante, at 13. Although initially recognizing the important interest in preventing crime, the Court later indicates that the "absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us" lessens this interest. Ante, at 17-18. But the village is entitled to rely on our assertion in Martin that door-to-door canvassing poses a risk of crime, see Erie v. Pap's A. M., 529 U. S. 277, 297 (2000) (citing Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986)), and the experience of other jurisdictions with crime stemming from door-to-door canvassing, see 528 U. S. 377, 393, n. 6 (2000). The double murder in Hanover described above is but one tragic example of the crime threat posed by door-to-door canvassing. Other recent examples include a man soliciting gardening jobs door-to-door who tied up and robbed elderly residents, see Van Derbken, 98-Year-Old Latest Victim in Series of Home Invasions, San Francisco Chronicle, Sept. 13, 2000, p. A18, a door-to-door vacuum cleaner salesman who raped a woman, see Employers Liable for Rape by Salesman, Texas Lawyer, Jan. 11, 1999, p. 2, and a man going door-to-door purportedly on behalf of a church group who committed multiple sexual assaults, see Ingersoll, Sex Crime Suspect Traveled with Church Group, Wis. State Journal, Feb. 19, 2000, p. 1B. The Constitution does not require that Stratton first endure its own crime wave before it takes measures to prevent crime. What is more, the Court soon forgets both the privacy and crime interests. It finds the ordinance too broad because it applies to a "significant number of non-commercial `canvassers.' " Ante, at 14. But noncommercial canvassers, for example, those purporting to conduct environmental surveys for school, see supra, at 2, can violate no trespassing signs and engage in burglaries and violent crimes just as easily as commercial canvassers can. See Martin, 517 U. S. 484, 501 (1996) ("[O]ur commercial speech cases have recognized the dangers that attend governmental attempts to single out certain messages for suppression")--and turns it into a vice. The next question is whether the ordinance serves the important interests of protecting privacy and preventing fraud and crime. With respect to the interest in protecting privacy, the Court concludes that "[t]he annoyance caused by an uninvited knock on the front door is the same whether or not the visitor is armed with a permit." Ante, at 17. True, but that misses the key point: the permit requirement results in fewer uninvited knocks. Those who have complied with the permit requirement are less likely to visit residences with no trespassing signs, as it is much easier for the authorities to track them down. The Court also fails to grasp how the permit requirement serves Stratton's interest in preventing crime.2 We have approved of permit requirements for those engaging in protected First Amendment activity because of a common-sense recognition that their existence both deters and helps detect wrongdoing. See, e.g., Thomas v. Chicago Park Dist., 534 U. S. 316 (2002) (upholding a permit requirement aimed, in part, at preventing unlawful uses of a park and assuring financial accountability for damage caused by the event). And while some people, intent on committing burglaries or violent crimes, are not likely to be deterred by the prospect of a misdemeanor for violating the permit ordinance, the ordinance's effectiveness does not depend on criminals registering. The ordinance prevents and detects serious crime by making it a crime not to register. Take the Hanover double murder discussed earlier. The murderers did not achieve their objective until they visited their fifth home over a period of seven months. If Hanover had a permit requirement, the teens may have been stopped before they achieved their objective. One of the residents they visited may have informed the police that there were two canvassers who lacked a permit. Such neighborly vigilance, though perhaps foreign to those residing in modern day cities, is not uncommon in small towns. Or the police on their own may have discovered that two canvassers were violating the ordinance. Apprehension for violating the permit requirement may well have frustrated the teenagers' objectives; it certainly would have assisted in solving the murders had the teenagers gone ahead with their plan.3 Of course, the Stratton ordinance does not guarantee that no canvasser will ever commit a burglary or violent crime. The Court seems to think this dooms the ordinance, erecting an insurmountable hurdle that a law must provide a fool-proof method of preventing crime. In order to survive intermediate scrutiny, however, a law need not solve the crime problem, it need only further the interest in preventing crime. Some deterrence of serious criminal activity is more than enough to survive intermediate scrutiny. The final requirement of intermediate scrutiny is that a regulation leave open ample alternatives for expression. Undoubtedly, ample alternatives exist here. Most obviously, canvassers are free to go door-to-door after filling out the permit application. And those without permits may communicate on public sidewalks, on street corners, through the mail, or through the telephone. Intermediate scrutiny analysis thus confirms what our cases have long said: A discretionless permit requirement for canvassers does not violate the First Amendment. Today, the Court elevates its concern with what is, at most, a negligible burden on door-to-door communication above this established proposition. Ironically, however, today's decision may result in less of the door-to-door communication that the Court extols. As the Court recognizes, any homeowner may place a "No Solicitation" sign on his or her property, and it is a crime to violate that sign. Ante, at 17. In light of today's decision depriving Stratton residents of the degree of accountability and safety that the permit requirement provides, more and more residents may decide to place these signs in their yards and cut off door-to-door communication altogether.FOOTNOTESFootnote 1 Section 116.01 provides: "The practice of going in and upon private property and/or the private residence of Village residents in the Village by canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise or services, not having been invited to do so by the owners or occupants of such private property or residences, and not having first obtained a permit pursuant to Section 116.03 of this Chapter, for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services, is hereby declared to be a nuisance and is prohibited." App. to Brief for Respondents 2a. The Village has interpreted the term "canvassers" to include Jehovah's Witnesses and the term "cause" to include their ministry. The ordinance does not appear to require a permit for a surveyor since such an individual would not be entering private property "for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services." Thus, contrary to the assumption of the dissent in its heavy reliance on the example from Dartmouth, post, at 2, 7, 9, the Village's ordinance would have done nothing to prevent that tragic crime.Footnote 2 Section 116.03 provides:"(a) No canvasser, solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise or services who is described in Section 116.01 of this Chapter and who intends to go in or upon private property or a private residence in the Village for any of the purposes described in Section 116.01, shall go in or upon such private property or residence without first registering in the office of the Mayor and obtaining a Solicitation Permit."(b) The registration required by subsection (a) hereof shall be made by filing a Solicitor's Registration Form, at the office of the Mayor, on a form furnished for such purpose. The Form shall be completed by the Registrant and it shall then contain the following information:"(1) The name and home address of the Registrant and Registrant's residence for five years next preceding the date of registration;"(2) A brief description of the nature and purpose of the business, promotion, solicitation, organization, cause, and/or the goods or services offered;"(3) The name and address of the employer or affiliated organization, with credentials from the employer or organization showing the exact relationship and authority of the Applicant;"(4) The length of time for which the privilege to canvass or solicit is desired;"(5) The specific address of each private residence at which the Registrant intends to engage in the conduct described in Section 116.01 of this Chapter, and,"(6) Such other information concerning the Registrant and its business or purpose as may be reasonably necessary to accurately describe the nature of the privilege desired." Brief for Respondents 3a-4a.Footnote 3 Section 116.04 provides: "Each Registrant who complies with Section 116.03(b) shall be furnished a Solicitation Permit. The permit shall indicate that the applicant has registered as required by Section 116.03 of this Chapter. No permittee shall go in or upon any premises not listed on the Registrant's Solicitor's Registration Form."Each person shall at all times, while exercising the privilege in the Village incident to such permit, carry upon his person his permit and the same shall be exhibited by such person whenever he is requested to do so by any police officer or by any person who is solicited." Id., at 4a.Footnote 4 Section 116.06 provides: "Permits described in Section 116.04 of this Chapter may be denied or revoked by the Mayor for any one or more of the following reasons:"(a) Incomplete information provided by the Registrant in the Solicitor's Registration Form. "(b) Fraud or misrepresentation contained in the Solicitor's Registration Form."(c) Fraud, misrepresentation or false statements made in the course of conducting the activity. "(d) Violation of any of the provisions of this chapter or of other Codified Ordinances or of any State or Federal Law."(e) Conducting canvassing, soliciting or business in such a manner as to constitute a trespass upon private property. "(f) The permittee ceases to possess the qualifications required in this chapter for the original registration." Id., at 5a.Footnote 5 Section 116.07 provides, in part: "(a) Notwithstanding the provisions of any other Section of this Chapter 116, any person, firm or corporation who is the owner or lawful occupant of private property within the territorial limits of the Village of Stratton, Ohio, may prohibit the practice of going in or upon the private property and/or the private residence of such owner or occupant, by uninvited canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors, by registering its property in accordance with Subdivision (b) of this Section and by posting upon each such registered property a sign which reads `No Solicitation' in a location which is reasonably visible to persons who intend to enter upon such property."(b) The registration authorized by Subsection (a) hereof shall be made by filing a `No Solicitation Registration Form', at the office of the Mayor, on a form furnished for such purpose. The form shall be completed by the property owner or occupant and it shall then contain the following information: ... ." Id., at 6a.Footnote 6 The suggested exceptions listed on the form are: 1. Scouting Organizations 2. Camp Fire Girls 3. Children's Sports Organizations 4. Children's Solicitation for Supporting School Activities 5. Volunteer Fire Dept. 6. Jehovah's Witnesses 7. Political Candidates 8. Beauty Products Sales People 9. Watkins Sales10. Christmas Carolers11. Parcel Delivery12. Little League13. Trick or Treaters during Halloween Season14. Police15. Campaigners16. Newspaper Carriers17. Persons Affiliated with Stratton Church18. Food Salesmen19. Salespersons. App. 229a.Apparently the ordinance would prohibit each of these 19 categories from canvassing unless expressly exempted.Footnote 7 Specifically, from the Book of "Matthew chapter 28, verses 19 and 20, which we take as our commission to preach. ... So Jesus, by example, instituted a house-to-house search for people so as to preach the good news to them. And that's the activity that Jehovah's Witnesses engage in, even as Christ's apostles did after his resurrection to heaven." Id., at 313a-314a.Footnote 8 "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school)." 494 U. S., at 881 (footnote omitted).Footnote 9 In their briefs and at oral argument, the parties debated a factual issue embedded in the question presented, namely, whether the permit contains the speaker's name. We need not resolve this factual dispute in order to answer whether the ordinance's registration requirement abridges so much protected speech that it is invalid on its face.Footnote 10 Hynes v. Mayor and Council of Oradell, 425 U. S. 610 (1976); Martin v. City of Struthers, 319 U. S. 141 (1943); Murdock v. Pennsylvania, 319 U. S. 105 (1943); Jamison v. Texas, 318 U. S. 413 (1943); Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State (Town of Irvington), 308 U. S. 147 (1939); Lovell v. City of Griffin, 303 U. S. 444 (1938).Footnote 11 The question presented is similar to one raised, but not decided in Hynes. The ordinance that we held invalid in that case on vagueness grounds required advance notice to the police before "casually soliciting the votes of neighbors." 425 U. S., at 620, n. 4.Footnote 12 Hynes, 425 U. S., at 620, n. 4.Footnote 13 Talley v. California, 362 U. S. 60 (1960); McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 (1995).Footnote 14 Although the Jehovah's Witnesses do not themselves object to a loss of anonymity, they bring this facial challenge in part on the basis of overbreadth. We may, therefore, consider the impact of this ordinance on the free speech rights of individuals who are deterred from speaking because the registration provision would require them to forgo their right to speak anonymously. See Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).FOOTNOTESFootnote 1 Of course, fraud itself may be a crime. I assume, as does the majority, that the interest in preventing "crime" refers to a separate interest in preventing burglaries and violent crimes.Footnote 2 It is sufficient that the ordinance serves the important interest of protecting residents' privacy. A law need only serve a governmental interest. Because the Court's treatment of Stratton's interest in preventing crime gives short shrift to Stratton's attempt to deal with a very serious problem, I address that issue as well.Footnote 3 Indeed, an increased focus on apprehending criminals for "petty" offenses, such as not paying subway fares, is credited with the dramatic reduction in violent crimes in New York City during the last decade. See, e.g., M. Gladwell, The Tipping Point: How Little Things Can Make a Big Difference (2000). If this works in New York City, surely it can work in a small village like Stratton. |
7 | Georgia's assessment of a nondiscriminatory ad valorem property tax against petitioner's inventory of imported tires maintained at its wholesale distribution warehouse in the State held not to be within the Import-Export Clause's prohibition against States laying "any Imposts or Duties on Imports." Low v. Austin, 13 Wall. 29, overruled. Pp. 281-302. (a) In the history of the Import-Export Clause, whose purposes were to commit to the Federal Government the exclusive power to regulate foreign commerce and the exclusive right to all revenues from imposts and duties on imports, and to assure the free flow of imported goods among the States by prohibiting the taxing of goods merely flowing through seaboard States to other States, there is nothing to suggest that a nondiscriminatory ad valorem property tax imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. Pp. 283-286. (b) Such nondiscriminatory property taxation cannot affect the Federal Government's exclusive regulation of foreign commerce, since such a tax does not fall on imports as such because of their place of origin and it cannot be used to create special protective tariffs or particular preferences for certain domestic goods or be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation. P. 286. (c) Nor will such taxation deprive the Federal Government of its exclusive right to all revenues from imposts and duties on imports, since that right by definition only extends to revenues from exactions of a particular category. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth, and there is no reason why an importer should not share these costs with his competitors handling domestic goods. Pp. 286-288. (d) Nor does such nondiscriminatory property taxation interfere with the free flow of imported goods among the States. Importers of goods destined for inland States can easily avoid such taxes by using modern transportation methods, and to the extent such taxation may increase the cost of goods purchased by "inland" consumers, the cost, which is the quid pro quo for benefits actually conferred by the taxing State, is one that ultimate consumers should pay for. The prevention of exactions that are no more than transit fees that could otherwise be imposed due to the peculiar geographical situation of certain States may be secured by prohibiting the assessment of even nondiscriminatory property taxes on goods that are still in import transit. Pp. 288-290. (e) The Import-Export Clause, while not in terms excepting nondiscriminatory taxes with some impact on imports or exports, is not couched in terms of a broad prohibition of every "tax," but only prohibits States from laying "Imposts or Duties," which historically connoted exactions directed only at imports or commercial activity as such. Pp. 290-293. (f) Since prohibition of nondiscriminatory ad valorem property taxation would not further the objectives of the Import-Export Clause, only the clearest constitutional mandate should lead to a condemnation of such taxation, and the Clause's terminology - "Imposts or Duties" - is sufficiently ambiguous as not to warrant a presumption that it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate. Pp. 293-294. 233 Ga. 712, 214 S. E. 2d 349, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, post, p. 302. STEVENS, J., took no part in the consideration or decision of the case.Earle B. May, Jr., argued the cause for petitioner. With him on the brief were F. M. Bird, Edward R. Kane, and E. A. Dominianni.Hosea Alexander Stephens, Jr., argued the cause for respondents. With him on the brief was Homer M. Stark.* [Footnote *] Curt T. Schneider, Attorney General, and Jonathan P. Small and Clarence J. Malone, Assistant Attorneys General, filed a brief for the State of Kansas et al. as amici curiae urging affirmance. Briefs of amici curiae were filed by Arthur K. Boltan, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, H. Perry Michael, Senior Assistant Attorney General, and David A. Runnion, Assistant Attorney General, for the State of Georgia; by William J. Brown, Attorney General, and John C. Duffy, Jr., Assistant Attorney General, for the Tax Commissioner of Ohio; and by John H. Larson, James Dexter Clark, Jonathan Day, Leonard Putnam, Richard W. Marston, Richard J. Moore, Robert M. Wash, Douglas J. Maloney, Adrian Kuyper, Ray T. Sullivan, Jr., John B. Heinrich, William Sabourin, George P. Kading, William M. Siegel, Byron D. Athan, Robert A. Rehberg, Thomas B. Sawyer, Calvin E. Baldwin, Charles R. Mack, Joseph Kase, Jr., Thomas M. O'Connor, and John J. Doherty for the county of Los Angeles, California, et al.MR. JUSTICE BRENNAN delivered the opinion of the Court.Respondents, the Tax Commissioner and Tax Assessors of Gwinnett County, Ga., assessed ad valorem property taxes against tires and tubes imported by petitioner from France and Nova Scotia that were included on the assessment dates in an inventory maintained at its wholesale distribution warehouse in the county. Petitioner brought this action for declaratory and injunctive relief in the Superior Court of Gwinnett County, alleging that with the exception of certain passenger tubes that had been removed from the original shipping cartons,1 the ad valorem property taxes assessed against its inventory of imported tires and tubes were prohibited by Art. I, 10, cl. 2, of the Constitution, which provides in pertinent part: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws ... ." After trial, the Superior Court granted the requested declaratory and injunctive relief. On appeal, the Supreme Court of Georgia affirmed in part and reversed in part, agreeing that the tubes in the corrugated shipping cartons were immune from ad valorem taxation, but holding that the tires had lost their status as imports and had become subject to such taxation because they had been mingled with other tires imported in bulk, sorted, and arranged for sale. 233 Ga. 712, 214 S. E. 2d 349 (1975). We granted certiorari, . The only question presented is whether the Georgia Supreme Court was correct in holding that the tires were subject to the ad valorem property tax.2 We affirm without addressing the question whether the Georgia Supreme Court was correct in holding that the tires had lost their status as imports. We hold that, in any event, Georgia's assessment of a nondiscriminatory ad valorem property tax against the imported tires is not within the constitutional prohibition against laying "any Imposts or Duties on Imports ..." and that insofar as Low v. Austin, 13 Wall. 29 (1872) is to the contrary, that decision is overruled.IPetitioner, a New York corporation qualified to do business in Georgia, operates as an importer and wholesale distributor in the United States of automobile and truck tires and tubes manufactured in France and Nova Scotia by Michelin Tires, Ltd. The business is operated from distribution warehouses in various parts of the country. Distribution and sale of tires and tubes from the Gwinnett County warehouse is limited to the 250-300 franchised dealers with whom petitioner does all of its business in six southeastern States. Some 25% of the tires and tubes are manufactured in and imported from Nova Scotia, and are brought to the United States in tractor-driven, over-the-road trailers packed and sealed at the Nova Scotia factory. The remaining 75% of the imported tires and tubes are brought to the United States by sea from France and Nova Scotia in sea vans packed and sealed at the foreign factories. Sea vans are essentially over-the-road trailers from which the wheels are removed before being loaded aboard ship. Upon arrival of the ship at the United States port of entry, the vans are unloaded, the wheels are replaced, and the vans are tractor-hauled to petitioner's distribution warehouse after clearing customs upon payment of a 4% import duty.The imported tires, each of which has its own serial number, are packed in bulk into the trailers and vans, without otherwise being packaged or bundled. They lose their identity as a unit, however, when unloaded from the trailers and vans at the distribution warehouse. When unloaded they are sorted by size and style, without segregation by place of manufacture, stacked on wooden pallets each bearing four stacks of five tires of the same size and style, and stored in pallet stacks of three pallets each. This is the only processing required or performed to ready the tires for sale and delivery to the franchised dealers.Sales of tires and tubes from the Gwinnett County distribution warehouse to the franchised dealers average 4,000-5,000 pounds per sale. Orders are filled without regard to the shipments in which the tires and tubes arrived in the United States or the place of their manufacture. Delivery to the franchised dealers is by common carrier or customer pickup.IIBoth Georgia courts addressed the question whether, without regard to whether the imported tires had lost their character as imports, Georgia's nondiscriminatory ad valorem tax fell within the constitutional prohibition against the laying by States of "any Imposts or Duties on Imports ... ." The Superior Court expressed strong doubts that the ad valorem tax fell within the prohibition but concluded that it was bound by this Court's decisions to the contrary. The Superior Court stated: "While it would seem that where said tires and tubes have been placed in [petitioner's] general inventory for the purpose of sale to its customers, ... such inventory should be taxed to the same extent as any other inventory of any other business in Gwinnett County, and the Court would so hold if supported by the law, it is clear that where the property is imported for resale it retains its import exemption from ad valorem taxes until after such sale," "[for] [t]he immunity of imported goods from local taxation includes immunity from local ad valorem property taxes; Hooven & Allison Company v. Evatt, ; Low v. Austin, ." Pet. for Cert., App. A-4, A-3. Similarly, the Georgia Supreme Court stated, 233 Ga., at 722, 214 S. E. 2d. at 355: "[Petitioners] argue that an annual ad valorem tax is not a tax on imports within the meaning of the federal constitutional provision. We reject this argument on the basis of the above-cited authority. [E. g., Low v. Austin.]" Low v. Austin, supra, is the leading decision of this Court holding that the States are prohibited by the Import-Export Clause from imposing a nondiscriminatory ad valorem property tax on imported goods until they lose their character as imports and become incorporated into the mass of property in the State. The Court there reviewed a decision of the California Supreme Court that had sustained the constitutionality of California's nondiscriminatory ad valorem tax on the ground that the Import-Export Clause only prohibited taxes upon the character of the goods as imports and therefore did not prohibit nondiscriminatory taxes upon the goods as property. See 13 Wall., at 30-31. This Court reversed on its reading of the seminal opinion construing the Import-Export Clause, Brown v. Maryland, 12 Wheat. 419 (1827), as holding that "[w]hilst retaining their character as imports, a tax upon them, in any shape, is within the constitutional prohibition." 13 Wall., at 34.Scholarly analysis has been uniformly critical of Low v. Austin. It is true that Mr. Chief Justice Marshall, speaking for the Court in Brown v. Maryland, supra, at 442, said that "while [the thing imported remains] the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." Commentators have uniformly agreed that Low v. Austin misread this dictum in holding that the Court in Brown included nondiscriminatory ad valorem property taxes among prohibited "imposts" or "duties," for the contrary conclusion is plainly to be inferred from consideration of the specific abuses which led the Framers to include the Import-Export Clause in the Constitution. See, e. g., Powell, State Taxation of Imports - When Does an Import Cease to Be an Import?, 58 Harv. L. Rev. 858 (1945); Note, The Supreme Court, 1958 Term, 73 Harv. L. Rev. 126, 176 (1959); Early & Weitzman, A Century of Dissent: The Immunity of Goods Imported for Resale From Non-discriminatory State Personal Property Taxes, 7 Sw. U. L. Rev. 247 (1975); Dakin, The Protective Cloak of the Export-Import Clause: Immunity for the Goods or Immunity for the Process?, 19 La. L. Rev. 747 (1959).Our independent study persuades us that a nondiscriminatory ad valorem property tax is not the type of state exaction which the Framers of the Constitution or the Court in Brown had in mind as being an "impost" or "duty" and that Low v. Austin's reliance upon the Brown dictum to reach the contrary conclusion was misplaced.IIIOne of the major defects of the Articles of Confederation, and a compelling reason for the calling of the Constitutional Convention of 1787, was the fact that the Articles essentially left the individual States free to burden commerce both among themselves and with foreign countries very much as they pleased. Before 1787 it was commonplace for seaboard States with port facilities to derive revenue to defray the costs of state and local governments by imposing taxes on imported goods destined for customers in other States. At the same time, there was no secure source of revenue for the central government. James Madison, in his Preface to Debates in the Convention of 1787, 3 M. Farrand, The Records of the Federal Convention of 1787, p. 542 (1911) (hereafter Farrand), provides a graphic description of the situation: "The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, thro whose ports, their commerce was carried on. New Jersey, placed between Phila. & N. York, was likened to a Cask tapped at both ends: and N. Carolina between Virga. & S. Carolina to a patient bleeding at both Arms. The Articles of Confederation provided no remedy for the complaint: which produced a strong protest on the part of N. Jersey; and never ceased to be a source of dissatisfaction & discord, until the new Constitution, superseded the old."3 And further, id., at 546-548:"Rh. I. was the only exception to a compliance with the recommendation from Annapolis [to have a Const. Convention], well known to have been swayed by an obdurate adherence to an advantage which her position gave her of taxing her neighbors thro' their consumption of imported supplies, an advantage which it was foreseen would be taken from her by a revisal of the Articles of Confederation. ... . . "The same want of a general power over Commerce led to an exercise of this power separately, by the States, wch not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the W. Indn. navigation, which was attempted by Virga... . the States having ports for foreign commerce, taxed & irritated the adjoining States, trading thro' them, as N. Y. Pena. Virga. & S-Carolina." The Framers of the Constitution thus sought to alleviate three main concerns by committing sole power to lay imposts and duties on imports in the Federal Government, with no concurrent state power: the Federal Government must speak with one voice when regulating commercial relations with foreign governments, and tariffs, which might affect foreign relations, could not be implemented by the States consistently with that exclusive power;4 import revenues were to be the major source of revenue of the Federal Government and should not be diverted to the States;5 and harmony among the States might be disturbed unless seaboard States, with their crucial ports of entry, were prohibited from levying taxes on citizens of other States by taxing goods merely flowing through their ports to the other States not situated as favorably geographically.6 Nothing in the history of the Import-Export Clause even remotely suggests that a nondiscriminatory ad valorem property tax which is also imposed on imported goods that are no longer in import transit was the type of exaction that was regarded as objectionable by the Framers of the Constitution. For such an exaction, unlike discriminatory state taxation against imported goods as imports, was not regarded as an impediment that severely hampered commerce or constituted a form of tribute by seaboard States to the disadvantage of the other States.It is obvious that such nondiscriminatory property taxation can have no impact whatsoever on the Federal Government's exclusive regulation of foreign commerce, probably the most important purpose of the Clause's prohibition. By definition, such a tax does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation.Nor will such taxation deprive the Federal Government of the exclusive right to all revenues from imposts and duties on imports and exports, since that right by definition only extends to revenues from exactions of a particular category: if nondiscriminatory ad valorem taxation is not in that category, it deprives the Federal Government of nothing to which it is entitled. Unlike imposts and duties, which are essentially taxes on the commercial privilege of bringing goods into a country, such property taxes are taxes by which a State apportions the cost of such services as police and fire protection among the beneficiaries according to their respective wealth; there is no reason why an importer should not bear his share of these costs along with his competitors handling only domestic goods. The Import-Export Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies. See, e. g., May v. New Orleans, , 507-509 (1900). It may be that such taxation could diminish federal impost revenues to the extent its economic burden may discourage purchase or importation of foreign goods. The prevention or avoidance of this incidental effect was not, however, even remotely an objective of the Framers in enacting the prohibition. Certainly the Court in Brown did not think so. See 12 Wheat., at 443-444. Taxes imposed after an initial sale, after the breakup of the shipping packages, or the moment goods imported for use are committed to current operational needs are also all likely to have an incidental effect on the volume of goods imported; yet all are permissible. See, e. g., Waring v. The Mayor, 8 Wall. 110 (1869) (taxation after initial sale); May v. New Orleans, supra (taxation after breakup of shipping packages); Youngstown Sheet & Tube Co. v. Bowers, (taxation of goods committed to current operational needs by manufacturer). What those taxes and nondiscriminatory ad valorem property taxes share, it should be emphasized, is the characteristic that they cannot be selectively imposed and increased so as substantially to impair or prohibit importation.7 Finally, nondiscriminatory ad valorem property taxes do not interfere with the free flow of imported goods among the States, as did the exactions by States under the Articles of Confederation directed solely at imported goods. Indeed, importers of goods destined for inland States can easily avoid even those taxes in today's world. Modern transportation methods such as air freight and containerized packaging, and the development of railroads and the Nation's internal waterways, enable importation directly into the inland States. Petitioner, for example, operates other distribution centers from wholesale warehouses in inland States. Actually, a quarter of the tires distributed from petitioner's Georgia warehouse are imported interstate directly from Canada. To be sure, allowance of nondiscriminatory ad valorem property taxation may increase the cost of goods purchased by "inland" consumers.8 But as already noted, such taxation is the quid pro quo for benefits actually conferred by the taxing State. There is no reason why local taxpayers should subsidize the services used by the importer; ultimate consumers should pay for such services as police and fire protection accorded the goods just as much as they should pay transportation costs associated with those goods.9 An evil to be prevented by the Import-Export Clause was the levying of taxes which could only be imposed because of the peculiar geographical situation of certain States that enabled them to single out goods destined for other States. In effect, the Clause was fashioned to prevent the imposition of exactions which were no more than transit fees on the privilege of moving through a State.10 A nondiscriminatory ad valorem property tax obviously stands on a different footing, and to the extent there is any conflict whatsoever with this purpose of the Clause, it may be secured merely by prohibiting the assessment of even nondiscriminatory property taxes on goods which are merely in transit through the State when the tax is assessed.11 Admittedly, the wording of the prohibition of the Import-Export Clause does not in terms except nondiscriminatory taxes with some impact on imports or exports. But just as clearly, the Clause is not written in terms of a broad prohibition of every "tax." The prohibition is only against States laying "Imposts or Duties" on "Imports." By contrast, Congress is empowered to "lay and collect Taxes, Duties, Imposts, and Excises," which plainly lends support to a reading of the Import-Export Clause as not prohibiting every exaction or "tax" which falls in some measure on imported goods. Indeed, Professor Crosskey makes a persuasive demonstration that the words "imposts" and "duties" as used in 1787 had meanings well understood to be exactions upon imported goods as imports. "Imposts" were like customs duties, that is, charges levied on imports at the time and place of importation. "Duties" was a broader term embracing excises as well as customs duties, and probably only capitation, land, and general property exactions were known by the term "tax" rather than the term "duty." 1 W. Crosskey, Politics and the Constitution in the History of the United States 296-297 (1953).12 The characteristic common to both "imposts" and "duties" was that they were exactions directed at imports or commercial activity as such and, as imposed by the seaboard States under the Articles of Confederation, were purposefully employed to regulate interstate and foreign commerce and tax States situated less favorably geographically.In any event, since prohibition of nondiscriminatory ad valorem property taxation would not further the objectives of the Import-Export Clause, only the clearest constitutional mandate should lead us to condemn such taxation. The terminology employed in the Clause - "Imposts or Duties" - is sufficiently ambiguous that we decline to presume it was intended to embrace taxation that does not create the evils the Clause was specifically intended to eliminate.IVThe Court in Low v. Austin nevertheless expanded the prohibition of the Clause to include nondiscriminatory ad valorem property taxes, and did so with no analysis, but with only the statement that Brown v. Maryland had marked the line "where the power of Congress over the goods imported ends, and that of the State begins, with as much precision as the subject admits." 13 Wall., at 32. But the opinion in Brown v. Maryland cannot properly be read to propose such a broad definition of "imposts" or "duties." The tax there held to be prohibited by the Import-Export Clause was imposed under a Maryland statute that required importers of foreign goods, and wholesalers selling the same by bale or package, to obtain a license and pay a $50 fee therefor, subject to certain forfeitures and penalties for noncompliance. The importers contested the validity of the statute, arguing that the license was a "palpable evasion" of the Import-Export Clause because it was essentially equivalent to a duty on imports. They contended that asserted differences between the license fee and a tax directly imposed on imports were more formal than substantial: the privilege of bringing the goods into the country could not realistically be divorced from the privilege of selling the goods, since the power to prohibit sale would be the power to prohibit importation, 12 Wheat., at 422; the payment of the tax at the time of sale rather than at the time of importation would be irrelevant since it would still be a tax on the same privilege at either time, id., at 423; and the fact that a license operates on the person of the importer while the duty operates on the goods themselves is irrelevant in that either levy would directly increase the cost of the goods, ibid. Since the power to impose a license on importers would also entail a power to price them out of the market or prohibit them entirely, the importers concluded that such a power must be repugnant to the exclusive federal power to regulate foreign commerce, id., at 423-425.The Attorney General of Maryland, Roger Taney, later Chief Justice, defended the constitutionality of Maryland's law. He argued that the fee was not a prohibited "impost" or "duty" because the license fee was not a tax upon the imported goods, but on the importers, a tax upon the occupation and nothing more, and the Import-Export Clause prohibited only exactions on the right of importation and not an exaction upon the occupation of importers. He contended that, in any event, the Clause, if not read as prohibiting only exactions on the right of importation, but, more broadly, as also prohibiting exactions on goods imported, would necessarily immunize imports from all state taxation at any time. Moreover, if the privilege of selling is a concomitant of the privilege of importing, the argument proved too much; the importer could sell free of regulation by the States in any place and in any manner, even importing free of regulations concerning the bringing of noxious goods into the city, or auctioning the goods in public warehouses, or selling at retail or as a traveling peddler, activities that had traditionally been subject to state regulation and taxation.The Court in Brown refused to define "imposts" or "duties" comprehensively, since the Maryland statute presented only the question "whether the legislature of a State can constitutionally require the importer of foreign articles to take out a license from the State, before he shall be permitted to sell a bale or package so imported." 12 Wheat., at 436. However, in holding that the Maryland license fee was within prohibited "imposts, or duties on imports ..." the Court significantly characterized an impost or duty as "a custom or a tax levied on articles brought into a country," id., at 437, although also holding that, while normally levied before the articles are permitted to enter, the exactions are no less within the prohibition if levied upon the goods as imports after entry; since "imports" are the goods imported, the prohibition of imposts or duties on "imports" was more than a prohibition of a tax on the act of importation; it "extends to a duty levied after [the thing imported] has entered the country," id., at 438. And since the power to prohibit sale of an article is the power to prohibit its introduction into the country, the privilege of sale must be a concomitant of the privilege of importation, and licenses on the right to sell must therefore also fall within the constitutional prohibition. Id., at 439.Taney's argument was persuasive, however, to the extent that the Court was prompted to declare that "the words of the prohibition ought not to be pressed to their utmost extent; ... in our complex system, the object of the powers conferred on the government of the Union, and the nature of the often conflicting powers which remain in the States, must always be taken into view ... . [T]here must be a point of time when the prohibition ceases, and the power of the State to tax commences ... ." Id., at 441.The Court stated that there were two situations in which the prohibition would not apply. One was the case of a state tax levied after the imported goods had lost their status as imports. The Court devised an evidentiary tool, the "original package" test, for use in making that determination. The formula was: "It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported, that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution." Id., at 441-442. "It is a matter of hornbook knowledge that the original package statement of Justice Marshall was an illustration, rather than a formula, and that its application is evidentiary, and not substantive ... ." Galveston v. Mexican Petroleum Corp., 15 F.2d 208 (SD Tex. 1926).The other was the situation of particular significance to our decision of this case, that is, when the particular state exaction is not a prohibited "impost" or "duty." The Court first stated its view of the characteristics of prohibited state levies. It said that the obvious clue was the express exception of the Import-Export Clause authorizing "imposts or duties" that "may be absolutely necessary for executing [the State's] inspection Laws." "[T]his exception," said the Court, "in favor of duties for the support of inspection laws, goes far in proving that the framers of the constitution classed taxes of a similar character with those imposed for the purposes of inspection, with duties on imports and exports, and supposed them to be prohibited." 12 Wheat., at 438 (emphasis supplied). The characteristic of the prohibited levy, the Court said later in the opinion - illustrated by the Maryland license tax - was that "the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property, and denies it the privilege of becoming so incorporated until it shall have contributed to the revenue of the State." Id., at 443 (emphasis supplied). The Court illustrated the kinds of state exactions that in its view fell without the prohibition as examples of neutral and nondiscriminatory taxation: a tax on itinerant peddlers, a service charge for the use of a public auctioneer, a property tax on plate or furniture personally used by the importer. These could not be considered within the constitutional prohibition because they were imposed without regard to the origin of the goods taxed. Id., at 443, 444. In contrast, the Maryland exaction in question was a license fee which singled out imports, and therefore was prohibited because "the tax intercepts the import, as an import, in its way to become incorporated with the general mass of property." Id., at 443. (Emphasis supplied.)Thus, it is clear that the Court's view in Brown was that merely because certain actions taken by the importer on his imported goods would so mingle them with the common property within the State as to "lose their distinctive character as imports" and render them subject to the taxing power of the State, did not mean that in the absence of such action, no exaction could be imposed on the goods. Rather, the Court clearly implied that the prohibition would not apply to a state tax that treated imported goods in their original packages no differently from the "common mass of property in the country"; that is, treated it in a manner that did not depend on the foreign origins of the goods.Despite the language and objectives of the Import-Export Clause, and despite the limited nature of the holding in Brown v. Maryland, the Court in Low v. Austin ignored the warning that the boundary between the power of States to tax persons and property within their jurisdictions and the limitations on the power of the States to impose imposts or duties with respect to "imports" was a subtle and difficult line which must be drawn as the cases arise. Low v. Austin also ignored the cautionary remark that; for those reasons, it "might be premature to state any rule as being universal in its application." 12 Wheat., at 441. Although it was "sufficient" in the context of Maryland's license tax on the right to sell imported goods to note that a tax imposed directly on imported goods which have not been acted upon in any way would clearly fall within the constitutional prohibition, that observation did not apply, as the foregoing analysis indicates, to a state tax which treated those same goods without regard to the fact of their foreign origin.Low v. Austin compounded the error in misreading the Brown opinion by the further error of misreading the views of Mr. Chief Justice Taney as expressed in his opinion in the License Cases, 5 How. 504 (1847) (six Justices wrote separately in the cases). As already observed, when the Chief Justice was Attorney General of Maryland he argued Brown v. Maryland for the State. He had argued that the Maryland license fee requirement fell upon the importer, not the imported goods, and therefore fell without the Import-Export Clause's prohibition against imposts or duties on "imports." In the License Cases he observed that "further and more mature reflection has convinced me that the rule laid down [in Brown v. Maryland] is a just and safe one, and perhaps the best that could have been adopted for preserving the right of the United States on the one hand, and of the States on the other, and preventing collision between them. The question, I have already said, was a very difficult one for the judicial mind. In the nature of things, the line of division is in some degree vague and indefinite, and I do not see how it could be drawn more accurately and correctly, or more in harmony with the obvious intention and object of this provision in the constitution. Indeed, goods imported, while they remain in the hands of the importer, in the form and shape in which they were brought into the country, can in no just sense be regarded as a part of that mass of property in the State usually taxed for the support of the State government." 5 How., at 575.Low v. Austin quoted this excerpt, 13 Wall., at 33-34, as supporting the holding, id., at 34, that "a tax upon [imported goods], in any shape, is within the constitutional prohibition." But Mr. Chief Justice Taney said much more in his opinion in the License Cases, and what he said further makes crystal clear that the prohibition applied only to state exactions upon imports as imports and did not apply to nondiscriminatory ad valorem property taxes. For, continuing his analysis in the very paragraph from which Low v. Austin excerpted only a part, he concluded: "A tax in any shape ... cannot be done directly, in the shape of a duty on imports, for that is expressly prohibited. And as it cannot be done directly, it could hardly be a just and sound construction of the constitution which would enable a State to accomplish precisely the same thing under another name, and in a different form." 5 How., at 576 (emphasis supplied). The Chief Justice then went on to distinguish an exaction upon imports as imports from property taxes indiscriminately applied to all owners of property, stating, ibid.: "Undoubtedly a State may impose a tax upon its citizens in proportion to the amount they are respectively worth; and the importing merchant is liable to this assessment like any other citizen, and is chargeable according to the amount of his property, whether it consists of money engaged in trade, or of imported goods which he proposes to sell, or any other property of which he is the owner. But a tax of this description stands upon a very different footing from a tax on the thing imported, while it remains a part of foreign commerce, and is not introduced into the general mass of property in the State." (Emphasis supplied.) Thus Mr. Chief Justice Taney's opinion is authority, precisely contrary to the reading of Low v. Austin, that nondiscriminatory ad valorem property taxes are not prohibited by the Import-Export Clause.It follows from the foregoing that Low v. Austin was wrongly decided. That decision therefore must be, and is, overruled.13 VPetitioner's tires in this case were no longer in transit. They were stored in a distribution warehouse from which petitioner conducted a wholesale operation, taking orders from franchised dealers and filling them from a constantly replenished inventory. The warehouse was operated no differently than would be a distribution warehouse utilized by a wholesaler dealing solely in domestic goods, and we therefore hold that the non-discriminatory property tax levied on petitioner's inventory of imported tires was not interdicted by the Import-Export Clause of the Constitution. The judgment of the Supreme Court of Georgia is accordingly Affirmed.MR. JUSTICE STEVENS took no part in the consideration or decision of this case. |
0 | A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property "obtained as a result of" the crime, (2) property "traceable" to the crime, and (3), as relevant here, other "property of equivalent value." 18 U. S. C. §1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis' possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. Held: The judgment is vacated, and the case is remanded.564 Fed. Appx. 493, vacated and remanded. Justice Breyer, joined by The Chief Justice, Justice Ginsburg, and Justice Sotomayor, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this conclusion. Pp. 3-16. (a) The Sixth Amendment right to counsel grants a defendant "a fair opportunity to secure counsel of his own choice," Powell v. Alabama, 287 U. S. 45, 53, that he "can afford to hire," Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has consistently referred to the right to counsel of choice as "fundamental." Pp. 3-5. (b) While the Government does not deny Luis' fundamental right to be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right by taking from Luis the ability to use funds she needs to pay for her chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will be available later to help pay for statutory penalties and restitution, for example. The Government further argues that two previous cases from this Court, Caplin & Drysdale, supra, at 619, and United States v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining order in this case. However, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference. Pp. 5-16. (1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may well be able to freeze before trial "tainted" assets — e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the defendant's ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used to commit a crime (or otherwise "traceable" to a crime) passes to the Government at the instant the crime is planned or committed. See 21 U. S. C. §853(c). But here, the Government seeks to impose restrictions upon Luis' untainted property without any showing of any equivalent governmental interest in that property. Pp. 5-10. (2) This distinction does not by itself answer the constitutional question because the law of property may allow a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. However, insofar as innocent funds are needed to obtain counsel of choice, the Sixth Amendment prohibits the court order sought here. Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government's interest in securing its punishment of choice, as well as the victim's interest in securing restitution. These latter interests are important, but — compared to the right to counsel — they seem to lie somewhat further from the heart of a fair, effective criminal justice system. Second, relevant, common-law legal tradition offers virtually no significant support for the Government's position and in fact argues to the contrary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant's own "innocent" property. Third, as a practical matter, accepting the Government's position could erode the right to counsel considerably. It would, in fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep financial consequences. These defendants, often rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. The upshot is a substantial risk that accepting the Government's views would render less effective the basic right the Sixth Amendment seeks to protect. Pp. 11-15. (3) The constitutional line between a criminal defendant's tainted funds and innocent funds needed to pay for counsel should prove workable. Money may be fungible, but courts, which use tracing rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. Pp. 15-16. Justice Thomas concluded that the rule that a pretrial freeze of untainted assets violates a defendant's Sixth Amendment right to counsel of choice rests strictly on the Sixth Amendment's text and common-law backdrop. Pp. 1-12. (a) The Sixth Amendment abolished the common-law rule that generally prohibited representation in felony cases. "The right to select counsel of one's choice" is thus "the root meaning" of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140, 147-148. Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant's assets before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned property to pay for an attorney, the right to counsel — originally understood to protect only the right to hire counsel of choice — would be meaningless. Without pretrial protection for at least some of a defendant's assets, the Government could nullify the right to counsel of choice, eviscerating the Sixth Amendment's original meaning and purpose. The modern, judicially created right to government-appointed counsel does not obviate these concerns. Pp. 1-5. (b) History confirms this textual understanding. The common-law forfeiture tradition provides an administrable rule for the Sixth Amendment's protection: A criminal defendant's untainted assets are protected from government interference before trial and judgment, but his tainted assets may be seized before trial as contraband or through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original meaning of the right to counsel does real work. Here, the incursion of the pretrial asset freeze into untainted assets, for which there is no historical tradition, violates the Sixth Amendment. Pp. 5-9. (c) This conclusion leaves no room for an atextual balancing analysis. Pp. 9-12. Breyer, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., and Ginsburg and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in the judgment. Kennedy, J., filed a dissenting opinion, in which Alito, J., joined. Kagan, J., filed a dissenting opinion.Opinion of Breyer, J. 578 U. S. ____ (2016)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 14-419SILA LUIS, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[March 30, 2016] Justice Breyer announced the judgment of the Court and delivered an opinion in which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join. A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of" the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.I In October 2012, a federal grand jury charged the petitioner, Sila Luis, with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. See §1349; §371; 42 U. S. C. §1320a-7b(b)(2)(A). The Government claimed that Luis had fraudulently obtained close to $45 million, almost all of which she had already spent. Believing it would convict Luis of the crimes charged, and hoping to preserve the $2 million remaining in Luis' possession for payment of restitution and other criminal penalties (often referred to as criminal forfeitures, which can include innocent — not just tainted — assets, a point of critical importance here), the Government sought a pretrial order prohibiting Luis from dissipating her assets. See 18 U. S. C. §1345(a)(2). And the District Court ultimately issued an order prohibiting her from "dissipating, or otherwise disposing of . . . assets, real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million)." App. to Pet. for Cert. A-6. The Government and Luis agree that this court order will prevent Luis from using her own untainted funds, i.e., funds not connected with the crime, to hire counsel to defend her in her criminal case. See App. 161 (stipulating "that an unquantified amount of revenue not connected to the indictment [had] flowed into some of the accounts" subject to the restraining order); ibid. (similarly stipulating that Luis used "revenue not connected to the indictment" to pay for real property that she possessed). Al-though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held "that there is no Sixth Amendment right to use untainted, substitute assets to hire counsel." 966 F. Supp. 2d 1321, 1334 (SD Fla. 2013). The Eleventh Circuit upheld the District Court. See 564 Fed. Appx. 493, 494 (2014) ( per curiam) (referring to, e.g., Kaley v. United States, 571 U. S. ___ (2014); Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 631 (1989); United States v. Monsanto, 491 U. S. 600, 616 (1989)). We granted Luis' petition for certiorari.II The question presented is "[w]hether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments." Pet. for Cert. ii. We see no reasonable way to interpret the relevant statutes to avoid answering this constitutional question. Cf. Monsanto, supra, at 614. Hence, we answer it, and our answer is that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead us to this conclusion.A No one doubts the fundamental character of a criminal defendant's Sixth Amendment right to the "Assistance of Counsel." In Gideon v. Wainwright, 372 U. S. 335 (1963), the Court explained:" 'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. 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.' " Id., at 344-345 (quoting Powell v. Alabama, 287 U. S. 45, 68-69 (1932)). It is consequently not surprising: first, that this Court's opinions often refer to the right to counsel as "fundamental," id., at 68; see Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936) (similar); Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938) (similar); second, that commentators describe the right as a "great engin[e] by which an innocent man can make the truth of his innocence visible," Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 643 (1996); see Herring v. New York, 422 U. S. 853, 862 (1975); third, that we have understood the right to require that the Government provide counsel for an indigent defendant accused of all but the least serious crimes, see Gideon, supra, at 344; and fourth, that we have considered the wrongful deprivation of the right to counsel a "structural" error that so "affec[ts] the framework within which the trial proceeds" that courts may not even ask whether the error harmed the defendant. United States v. Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quotation marks omitted); see id., at 150. Given the necessarily close working relationship between lawyer and client, the need for confidence, and the critical importance of trust, neither is it surprising that the Court has held that the Sixth Amendment grants a defendant "a fair opportunity to secure counsel of his own choice." Powell, supra, at 53; see Gonzalez-Lopez, supra, at 150 (describing "these myriad aspects of representation"). This "fair opportunity" for the defendant to secure counsel of choice has limits. A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party. See Wheat v. United States, 486 U. S. 153, 159 (1988). And an indigent defendant, while entitled to adequate representation, has no right to have the Government pay for his preferred representational choice. See Caplin & Drysdale, 491 U. S., at 624. We nonetheless emphasize that the constitutional right at issue here is fundamental: "[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire." Ibid.B The Government cannot, and does not, deny Luis' right to be represented by a qualified attorney whom she chooses and can afford. But the Government would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney. The Government points out that, while freezing the funds may have this consequence, there are important interests on the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay for statutory penalties (including forfeiture of untainted assets) and restitution, should it secure convictions. And it points to two cases from this Court, Caplin & Drysdale, supra, at 619, and Monsanto, 491 U. S., at 615, which, in the Government's view, hold that the Sixth Amendment does not pose an obstacle to its doing so here. In our view, however, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference.1 The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a robber's loot, a drug seller's cocaine, a burglar's tools, or other property associated with the planning, implementing, or concealing of a crime. The Government may well be able to freeze, perhaps to seize, assets of the latter, "tainted" kind before trial. As a matter of property law the defendant's ownership interest is imperfect. The robber's loot belongs to the victim, not to the defendant. See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878) ("The great principle that no one can be deprived of his property without his assent, except by the processes of the law, requires . . . that the property wrongfully transferred or stolen should be restored to its rightful owner"). The cocaine is contraband, long considered forfeitable to the Government wherever found. See, e.g., 21 U. S. C. §881(a) ("[Controlled substances] shall be subject to forfeiture to the United States and no property right shall exist in them"); Carroll v. United States, 267 U. S. 132, 159 (1925) (describing the seizure of "contraband forfeitable prop-erty"). And title to property used to commit a crime (or otherwise "traceable" to a crime) often passes to the Government at the instant the crime is planned or committed. See, e.g., §853(c) (providing that the Government's ownership interest in such property relates back to the time of the crime). The property at issue here, however, is not loot, contraband, or otherwise "tainted." It belongs to the defendant. That fact undermines the Government's reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was "tainted," and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of ) the assets. In Caplin & Drysdale, the Court considered a post-conviction forfeiture that took from a convicted defendant funds he would have used to pay his lawyer. The Court held that the forfeiture was constitutional. In doing so, however, it emphasized that the forfeiture statute at issue provided that " '[a]ll right, title, and interest in property [constituting or derived from any proceeds obtained from the crime] vests in the United States upon the commission of the act giving rise to [the] forfeiture.' " 491 U. S., at 625, n. 4 (quoting §853(c)) (emphasis added). It added that the law had "long-recognized" as "lawful" the "practice of vesting title to any forfeitable asset[s] in the United State[s] at the time of the crim[e]." Id., at 627. It pointed out that the defendant did not "claim, as a general proposition, that the [vesting] provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in the Government, as of the date of the criminal act in question." Id., at 627-628. And, given the vesting language, the Court explained that the defendant "did not hold good title" to the property. Id., at 627. The Court therefore concluded that "[t]here is no constitutional principle that gives one person [namely, the defendant] the right to give another's [namely, the Government's] property to a third party," namely, the lawyer. Id., at 628. In Monsanto, the Court considered a pretrial restraining order that prevented a not-yet-convicted defendant from using certain assets to pay for his lawyer. The defendant argued that, given this difference, Caplin & Drysdale's conclusion should not apply. The Court noted, however, that the property at issue was forfeitable under the same statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the application of that statute to Monsanto's case concerned only the pretrial restraint of assets that were traceable to the crime, see 491 U. S., at 602-603; thus, the statute passed title to those funds at the time the crime was committed (i.e., before the trial), see §853(c). The Court said that Caplin & Drysdale had already "weigh[ed] . . . th[e] very interests" at issue. Monsanto, supra, at 616. And it "rel[ied] on" its "conclusion" in Caplin & Drysdale to dispose of, and to reject, the defendant's "similar constitutional claims." 491 U. S., at 614. Justice Kennedy prefers to read Caplin & Drysdale and Monsanto broadly, as holding that "the Government, having established probable cause to believe that Luis' substitute [i.e., innocent] assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from spending those funds prior to trial." Post, at 6-7 (dissenting opinion). In other words, he believes that those cases stand for the proposition that property — whether tainted or untainted — is subject to pretrial restraint, so long as the property might someday be subject to forfeiture. But this reading asks too much of our precedents. For one thing, as discussed, Caplin & Drysdale and Monsanto involved the restraint only of tainted assets, and thus we had no occasion to opine in those cases about the constitutionality of pretrial restraints of other, untainted assets. For another thing, Justice Kennedy's broad rule ignores the statutory background against which Caplin & Drysdale and Monsanto were decided. The Court in those cases referenced §853(c) more than a dozen times. And it acknowledged that whether property is "forfeitable" or subject to pretrial restraint under Congress' scheme is a nuanced inquiry that very much depends on who has the superior interest in the property at issue. See Caplin & Drysdale, supra, at 626-628; Monsanto, 491 U. S., at 616. We see this in, for example, §853(e)(1), which explicitly authorizes restraining orders or injunctions against "property described in subsection (a) of this section" (i.e., tainted assets). We see this too in §853(e)(1)(B), which requires the Government — in certain circumstances — to give "notice to persons appearing to have an interest in the property and opportunity for hearing" before obtaining a restraining order against such property. We see this in §853(c), which allows "bona fide purchaser[s] for value" to keep property that would otherwise be subject to forfeiture. And we see this in §853(n)(6)(A), which exempts certain property from forfeiture when a third party can show a vested interest in the property that is "superior" to that of the Government. The distinction that we have discussed is thus an important one, not a technicality. It is the difference between what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose restrictions upon (or seize) property that the Government had probable cause to believe was the proceeds of, or traceable to, a crime. See Monsanto, supra, at 615. The relevant statute said that the Government took title to those tainted assets as of the time of the crime. See §853(c). And the defendants in those cases consequently had to concede that the disputed property was in an important sense the Government's at the time the court imposed the restrictions. See Caplin & Drysdale, supra, at 619-620; Monsanto, supra, at 602-603. This is not to say that the Government "owned" the tainted property outright (in the sense that it could take possession of the property even before obtaining a conviction). See post, at 7-10 (Kennedy, J., dissenting). Rather, it is to say that the Government even before trial had a "substantial" interest in the tainted property sufficient to justify the property's pretrial restraint. See Caplin & Drysdale, supra, at 627 ("[T]he property rights given the Government by virtue of [§853(c)'s relation-back provision] are more substantial than petitioner acknowledges"); United States v. Stowell, 133 U. S. 1, 19 (1890) ("As soon as [the possessor of the forfeitable asset committed the violation] . . . , the forfeiture . . . took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, as a recorded deed" (emphasis added)). If we analogize to bankruptcy law, the Government, by application of §853(c)'s relation-back provision, became something like a secured creditor with a lien on the defendant's tainted assets superior to that of most any other party. See 4 Collier on Bankruptcy ¶506.03[1] (16th ed. 2015). For this reason, §853(c) has operated in our cases as a significant limitation on criminal defendants' prop-erty rights in such assets — even before conviction. See Monsanto, supra, at 613 ("Permitting a defendant to use [tainted] assets for his private purposes that, under this [relation-back] provision, will become the property of the United States if a conviction occurs cannot be sanctioned"); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting that the Court had previously authorized injunctions against the further dissipation of property where, among other things, "the creditor (the Government) asserted an equitable lien on the property"). Here, by contrast, the Government seeks to impose restrictions upon Luis' untainted property without any showing of any equivalent governmental interest in that property. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Al-though such creditors someday might collect from a debtor's general assets, they cannot be said to have any present claim to, or interest in, the debtor's property. See id., at 330 ("[B]efore judgment . . . an unsecured creditor has no rights at law or in equity in the property of his debtor"); see also 5 Collier on Bankruptcy ¶541.05[1][b] ("[G]eneral unsecured creditor[s]" have "no specific property interest in the goods held or sold by the debtor"). The competing property interests in the tainted- and untainted-asset contexts therefore are not "exactly the same." Post, at 2 (Kagan, J., dissenting). At least regarding her untainted assets, Luis can at this point reasonably claim that the property is still "mine," free and clear.2 This distinction between (1) what is primarily "mine" (the defendant's) and (2) what is primarily "yours" (the Government's) does not by itself answer the constitutional question posed, for the law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. A holder of a reversionary interest, for example, can prevent the owner of a life estate from wasting the property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170, 37 S. E. 189, 190 (1900). Those who later may become beneficiaries of a trust are sometimes able to prevent the trustee from dissipating the trust's assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901). And holders of a contingent, future executory interest in property (an interest that might become possessory at some point down the road) can, in limited circumstances, enjoin the activities of the current owner. See, e.g., Dees v. Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909) ("[E]quity w[ill] interfere . . . only when it is made to appear that the contingency . . . is reasonably certain to happen, and the waste is . . . wanton and conscienceless"). The Government here seeks a somewhat analogous order, i.e., an order that will preserve Luis' untainted assets so that they will be available to cover the costs of forfeiture and restitution if she is convicted, and if the court later determines that her tainted assets are insufficient or otherwise unavailable. The Government finds statutory authority for its request in language authorizing a court to enjoin a criminal defendant from, for example, disposing of innocent "property of equivalent value" to that of tainted property. 18 U. S. C. §1345(a)(2)(B)(i). But Luis needs some portion of those same funds to pay for the lawyer of her choice. Thus, the legal conflict arises. And, in our view, insofar as innocent (i.e., untainted) funds are needed to obtain counsel of choice, we believe that the Sixth Amendment prohibits the court order that the Government seeks. Three basic considerations lead us to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, supra, at 3-5, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law, see Powell, 287 U. S., at 68-69. And that right includes "the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire." Caplin & Drysdale, 491 U. S., at 624. The order at issue in this case would seriously undermine that constitutional right. On the other side we find interests that include the Government's contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims' interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets — say, "tainted" property — that might be used for forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S., at 148 ("Deprivation of the right" to counsel of the defendant's choice "is 'complete' when the defendant is erroneously prevented from being represented by the lawyer he wants"). Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system. Second, relevant legal tradition offers virtually no significant support for the Government's position. Rather, tradition argues to the contrary. Describing the 18th-century English legal world (which recognized only a limited right to counsel), Blackstone wrote that "only" those "goods and chattels" that "a man has at the time of conviction shall be forfeited." 4 W. Blackstone, Commentaries on the Laws of England 388 (1765) (emphasis added); see 1 J. Chitty, Practical Treatise on the Criminal Law 737 (1816) ("[T]he party indicted may sell any of [his property] . . . to assist him in preparing for his defense on the trial"). Describing the common law as understood in 19th-century America (which recognized a broader right to counsel), Justice Story wrote:"It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the crown. The forfeiture . . . was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offense; but the right attached only by the conviction of the offender. . . . In the contemplation of the common law, the offender's right was not divested until the conviction." The Palmyra, 12 Wheat. 1, 14 (1827).See generally Powell, supra, at 60-61 (describing the scope of the right to counsel in 18th-century Britain and colonial America). As we have explained, supra, at 6-10, cases such as Caplin & Drysdale and Monsanto permit the Government to freeze a defendant's assets pretrial, but the opinions in those cases highlight the fact that the property at issue was "tainted," i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant's own "innocent" property — property with no connection to the charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfeitures from the preconviction restraint at issue here. As far as Luis' Sixth Amendment right to counsel of choice is concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny this constitutional right. See Gonzalez-Lopez, supra, at 148. Third, as a practical matter, to accept the Government's position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To permit the Government to freeze Luis' untainted assets would unleash a principle of constitutional law that would have no obvious stopping place. The statutory provision before us authorizing the present restraining order refers only to "banking law violation[s]" and "Federal health care offense[s]." 18 U. S. C. §1345(a)(2). But, in the Government's view, Congress could write more statutes authorizing pretrial restraints in cases involving other illegal behavior — after all, a broad range of such behavior can lead to postconviction forfeiture of untainted assets. See, e.g., §1963(m) (providing for forfeiture of innocent, substitute assets for any violation of the Racketeer Influenced and Corrupt Organizations Act). Moreover, the financial consequences of a criminal conviction are steep. Even beyond the forfeiture itself, criminal fines can be high, and restitution orders expensive. See, e.g., §1344 ($1 million fine for bank fraud); §3571 (mail and wire fraud fines of up to $250,000 for individuals and $500,000 for organizations); United States v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5 million restitution award against an individual defendant in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d 947, 949 (CA7 2011) ($37.6 million remedial sanction for fraud). How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer — particularly if they lack "tainted assets" because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect? See Powell, 287 U. S., at 69; Amar, 84 Geo. L. J., at 643 ("[T]he Sixth Amendment is generally designed to elicit truth and protect innocence"). These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. Dept. of Justice, Bureau of Justice Statistics, D. Farole & L. Langton, Census of Public Defender Offices, 2007: County-based and Local Public Defender Offices, 2007, p. 10 (Sept. 2010). And as one amicus points out, "[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources." Brief for New York Council of Defense Lawyers 11. The upshot is a substantial risk that accepting the Government's views would — by increasing the government-paid-defender workload — render less effective the basic right the Sixth Amendment seeks to protect.3 We add that the constitutional line we have drawn should prove workable. That line distinguishes between a criminal defendant's (1) tainted funds and (2) innocent funds needed to pay for counsel. We concede, as Justice Kennedy points out, post, at 12-13, that money is fungible; and sometimes it will be difficult to say whether a particular bank account contains tainted or untainted funds. But the law has tracing rules that help courts implement the kind of distinction we require in this case. With the help of those rules, the victim of a robbery, for example, will likely obtain the car that the robber used stolen money to buy. See, e.g., 1 G. Palmer, Law of Restitution §2.14, p. 175 (1978) ("tracing" permits a claim against "an asset which is traceable to or the product of" tainted funds); 4 A. Scott, Law of Trusts §518, pp. 3309-3314 (1956) (describing the tracing rules governing commingled accounts). And those rules will likely also prevent Luis from benefiting from many of the money transfers and purchases Justice Kennedy describes. See post, at 12-13. Courts use tracing rules in cases involving fraud, pension rights, bankruptcy, trusts, etc. See, e.g., Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U. S. ___, ___-___ (2016) (slip op., at 8-9). They consequently have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. See, e.g., 18 U. S. C. §1345(b) ("The court shall proceed as soon as practicable to the hearing and determination of [actions to freeze a defendant's tainted or untainted assets]"); 28 U. S. C. §2412(d) (courts must determine reasonable attorneys' fees under the Equal Access to Justice Act); see also Kaley, 571 U. S., at ___, and n. 3 (slip op., at 3, and n. 3) ("Since Monsanto, the lower courts have generally provided a hearing. . . . [to determine] whether probable cause exists to believe that the assets in dispute are traceable . . . to the crime charged in the indictment"). We therefore see little reason to worry, as Justice Kennedy seems to, that defendants will "be allowed to circumvent [the usual forfeiture rules] by using . . . funds to pay for a high, or even the highest, priced defense team [they] can find." Post, at 7.* * * For the reasons stated, we conclude that the defendant in this case has a Sixth Amendment right to use her own "innocent" property to pay a reasonable fee for the assistance of counsel. On the assumptions made here, the District Court's order prevents Luis from exercising that right. We consequently vacate the judgment of the Court of Appeals and remand the case for further proceedings.It is so ordered.APPENDIXTitle 18 U. S. C. §1345 provides:"(a)(1) If a person is-- "(A) violating or about to violate this chapter or section 287, 371 (insofar as such violation involves a conspiracy to defraud the United States or any agency thereof), or 1001 of this title; "(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or "(C) committing or about to commit a Federal health care offense;"the Attorney General may commence a civil action in any Federal court to enjoin such violation."(2) If a person is alienating or disposing of property, or intends to alienate or dispose of property, obtained as a result of a banking law violation (as defined in section 3322(d) of this title) or a Federal health care offense or property which is traceable to such violation, the Attorney General may commence a civil action in any Federal court-- "(A) to enjoin such alienation or disposition of property; or "(B) for a restraining order to-- "(i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and "(ii) appoint a temporary receiver to administer such restraining order."(3) A permanent or temporary injunction or restraining order shall be granted without bond."(b) The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure."Thomas, J., concurring in judgment 578 U. S. ____ (2016)No. 14-419SILA LUIS, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[March 30, 2016] Justice Thomas, concurring in the judgment. I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant's Sixth Amendment right to counsel of choice. But I do not agree with the plurality's balancing approach. Rather, my reasoning rests strictly on the Sixth Amendment's text and common-law backdrop. The Sixth Amendment provides important limits on the Government's power to freeze a criminal defendant's forfeitable assets before trial. And, constitutional rights necessarily protect the prerequisites for their exercise. The right "to have the Assistance of Counsel," U. S. Const., Amdt. 6, thus implies the right to use lawfully owned property to pay for an attorney. Otherwise the right to counsel — originally understood to protect only the right to hire counsel of choice — would be meaningless. History confirms this textual understanding. The common law limited pretrial asset restraints to tainted assets. Both this textual understanding and history establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure a potential forfeiture. The freeze here accordingly violates the Constitution.I The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." As originally understood, this right guaranteed a defendant the right "to employ a lawyer to assist in his defense." Scott v. Illinois, 440 U. S. 367, 370 (1979). The common law permitted counsel to represent defendants charged with misdemeanors, but not felonies other than treason. W. Beaney, The Right to Counsel in American Courts 8-9 (1955). The Sixth Amendment abolished the rule prohibiting representation in felony cases, but was "not aimed to compel the State to provide counsel for a defendant." Betts v. Brady, 316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27-36. "The right to select counsel of one's choice" is thus "the root meaning" of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140, 147-148 (2006). The Sixth Amendment denies the Government unchecked power to freeze a defendant's assets before trial simply to secure potential forfeiture upon conviction. If that bare expectancy of criminal punishment gave the Government such power, then a defendant's right to counsel of choice would be meaningless, because retaining an attorney requires resources. The law has long recognized that the "[a]uthorization of an act also authorizes a necessary predicate act." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 192 (2012) (discussing the "predicate-act canon"). As Thomas Cooley put it with respect to Government powers, "where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred." Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) ("[W]henever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied"). This logic equally applies to individual rights. After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U. S. Const., Amdt. 10 ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"). Constitutional rights thus implicitly protect those closely related acts necessary to their exercise. "There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself." Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting). The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them," Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and "to acquire and maintain proficiency in their use," Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617-618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise." McConnell v. Federal Election Comm'n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part). The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant's assets, the Government could nullify the right to counsel of choice. As the plurality says, an unlimited power to freeze assets before trial "would unleash a principle of constitutional law that would have no obvious stopping place." Ante, at 14; cf. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) ("[T]he power to tax involves the power to destroy" and that "power to destroy may defeat and render useless the power to create"). Unless the right to counsel also protects the prerequisite right to use one's financial resources for an attorney, I doubt that the Framers would have gone through the trouble of adopting such a flimsy "parchment barrie[r]." The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison). An unlimited power to freeze a defendant's potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment's original meaning and purpose. At English common law, forfeiture of all real and personal property was a standard punishment for felonies. See 4 W. Blackstone, Commentaries on the Laws of England 95 (1769) (Blackstone). That harsh penalty never caught on in America. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 682-683 (1974). The First Congress banned it. See Crimes Act of 1790, §24, 1 Stat. 117 ("[N]o conviction or judgment for any of the offences aforesaid, shall work corruption of blood, or any forfeiture of estate"). But the Constitution did not. See Art. III, §3, cl. 2 ("[N]o Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted"). If the Government's mere expectancy of a total forfeiture upon conviction were sufficient to justify a complete pretrial asset freeze, then Congress could render the right to counsel a nullity in felony cases. That would have shocked the Framers. As discussed, before adoption of the Sixth Amendment, felony cases (not misdemeanors) were precisely when the common law denied defendants the right to counsel. See supra, at ___. With an unlimited power to freeze assets before trial, the Government could well revive the common-law felony rule that the Sixth Amendment was designed to abolish. The modern, judicially created right to Government-appointed counsel does not obviate these concerns. As understood in 1791, the Sixth Amendment protected a defendant's right to retain an attorney he could afford. It is thus no answer, as the principal dissent replies, that defendants rendered indigent by a pretrial asset freeze can resort to public defenders. Post, at 14 (opinion of Kennedy, J.). The dissent's approach nullifies the original understanding of the right to counsel. To ensure that the right to counsel has meaning, the Sixth Amendment limits the assets the Government may freeze before trial to secure eventual forfeiture.II The longstanding rule against restraining a criminal defendant's untainted property before conviction guarantees a meaningful right to counsel. The common-law forfeiture tradition provides the limits of this Sixth Amendment guarantee. That tradition draws a clear line between tainted and untainted assets. The only alternative to this common-law reading is case-by-case adjudication to determine which freezes are "legitimate" and which are an "abuse of . . . power." McCulloch, 4 Wheat., at 430. This piecemeal approach seems woefully inadequate. Such questions of degree are "unfit for the judicial department." Ibid. But see Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 635 (1989) (stating in dicta that "[c]ases involving particular abuses can be dealt with individually . . . when (and if) any such cases arise"). Fortunately the common law drew a clear line between tainted and untainted assets. Pretrial freezes of untainted forfeitable assets did not emerge until the late 20th century. " '[T]he lack of historical precedent' " for the asset freeze here is " '[p]erhaps the most telling indication of a severe constitutional problem.' " Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505-506 (2010) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)). Indeed, blanket asset freezes are so tempting that the Government's "prolonged reticence would be amazing if [they] were not understood to be constitutionally proscribed." Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United States, 521 U. S. 898, 907-908 (1997) (reasoning that the lack of early federal statutes commandeering state executive officers "suggests an assumed absence of such power" given "the attractiveness of that course to Congress"). The common law prohibited pretrial freezes of criminal defendants' untainted assets. As the plurality notes, ante, at 13, for in personam criminal forfeitures like that at issue here, any interference with a defendant's property traditionally required a conviction. Forfeiture was "a part, or at least a consequence, of the judgment of conviction." The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.). The defendant's "property cannot be touched before . . . the forfeiture is completed." 1 J. Chitty, A Practical Treatise on the Criminal Law 737 (5th ed. 1847). This rule applied equally "to money as well as specific chattels." Id., at 736. And it was not limited to full-blown physical seizures. Although the defendant's goods could be appraised and inventoried before trial, he remained free to "sell any of them for his own support in prison, or that of his family, or to assist him in preparing for his defence on the trial." Id., at 737 (emphasis added). Blackstone likewise agreed that a defendant "may bona fide sell any of his chattels, real or personal, for the sustenance of himself and family between the [offense] and conviction." 4 Blackstone 380; see Fleetwood's Case, 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732 (K. B. 1611) (endorsing this rule). At most, a court could unwind prejudgment fraudulent transfers after conviction. 4 Blackstone 381; see Jones v. Ashurt, Skin. 357, 357-358, 90 Eng. Rep. 159 (K. B. 1693) (unwinding a fraudulent sale after conviction because it was designed to defeat forfeiture). Numerous English authorities confirm these common-law principles. Chitty, supra, at 736-737 (collecting sources). The common law did permit the Government, however, to seize tainted assets before trial. For example, "seizure of the res has long been considered a prerequisite to the initiation of in rem forfeiture proceedings." United States v. James Daniel Good Real Property, 510 U. S. 43, 57 (1993) (emphasis added); see The Brig Ann, 9 Cranch 289, 291 (1815) (Story, J.). But such forfeitures were traditionally "fixed . . . by determining what property has been 'tainted' by unlawful use." Austin v. United States, 509 U. S. 602, 627 (1993) (Scalia, J., concurring in part and concurring in judgment). So the civil in rem forfeiture tradition tracks the tainted-untainted line. It provides no support for the asset freeze here. There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods before trial based only on probable cause. See Carroll v. United States, 267 U. S. 132, 149-152 (1925) (discussing this history); Boyd v. United States, 116 U. S. 616, 623-624 (1886) (same). Tainted assets fall within this tradition because they are the fruits or instrumentalities of crime. So the Government may freeze tainted assets before trial based on probable cause to believe that they are forfeitable. See United States v. Monsanto, 491 U. S. 600, 602-603, 615-616 (1989). Nevertheless, our precedents require "a nexus ... between the item to be seized and criminal behavior." Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 307 (1967). Untainted assets almost never have such a nexus. The only exception is that some property that is evidence of crime might technically qualify as "untainted" but nevertheless has a nexus to criminal behavior. See ibid. Thus, untainted assets do not fall within the Fourth Amendment tradition either. It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute property. See Registry Act, §12, 1 Stat. 293 (providing for forfeiture of a ship or "the value thereof"); Collection Act of July 31, 1789, §22, 1 Stat. 42 (similar for goods); United States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting statutes). These statutes grew out of a broader "six-century-long tradition of in personam customs fines equal to one, two, three, or even four times the value of the goods at issue." Id., at 345-346 (Kennedy, J., dissenting). But this long tradition of in personam customs fines does not contradict the general rule against pretrial seizures of untainted property. These fines' in personam status strongly suggests that the Government did not collect them by seizing property at the outset of litigation. As described, that process was traditionally required for in rem forfeiture of tainted assets. See supra, at ___. There appears to be scant historical evidence, however, that forfeiture ever involved seizure of untainted assets before trial and judgment, except in limited circumstances not relevant here. Such summary procedures were reserved for collecting taxes and seizures during war. See Phillips v. Commissioner, 283 U. S. 589, 595 (1931); Miller v. United States, 11 Wall. 268, 304-306 (1871). The Government's right of action in tax and custom-fine cases may have been the same--"a civil action of debt." Bajakajian, supra, at 343, n. 18; Stockwell v. United States, 13 Wall. 531, 543 (1871); Adams v. Woods, 2 Cranch 336, 341 (1805). Even so, nothing suggests trial and judgment were expendable. See Miller, supra, at 304-305 (stating in dicta that confiscating Confederate property through in rem proceedings would have raised Fifth and Sixth Amendment concerns had they not been a war measure). The common law thus offers an administrable line: A criminal defendant's untainted assets are protected from Government interference before trial and judgment. His tainted assets, by contrast, may be seized before trial as contraband or through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets makes good sense. It avoids case-by-case adjudication, and ensures that the original meaning of the right to counsel does real work. The asset freeze here infringes the right to counsel because it "is so broad that it differs not only in degree, but in kind, from its historical antecedents." James Daniel Good, supra, at 82 (Thomas, J., concurring in part and dissenting in part). The dissenters object that, before trial, a defendant has an identical property interest in tainted and untainted assets. See post, at 8-9 (opinion of Kennedy, J.); post, at 2 (opinion of Kagan, J.). Perhaps so. I need not take a position on the matter. Either way, that fact is irrelevant. Because the pretrial asset freeze here crosses into untainted assets, for which there is no historical tradition, it is unconstitutional. Any such incursion violates the Sixth Amendment.III Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment below must be reversed. But I cannot go further and endorse the plurality's atextual balancing analysis. The Sixth Amendment guarantees the right to counsel of choice. As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing. Moreover, I have no idea whether, "compared to the right to counsel of choice," the Government's interests in securing forfeiture and restitution lie "further from the heart of a fair, effective criminal justice system." Ante, at 12. Judges are not well suited to strike the right "balance" between those incommensurable interests. Nor do I think it is our role to do so. The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail. See Heller, 554 U. S., at 634-635. Those tradeoffs are thus not for us to reevaluate. "The very enumeration of the right" to counsel of choice denies us "the power to decide . . . whether the right is really worth insisting upon." Id., at 634. Such judicial balancing "do[es] violence" to the constitutional design. Crawford v. Washington, 541 U. S. 36, 67-68 (2004). And it is out of step with our interpretive tradition. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943, 949-952 (1987) (noting that balancing did not appear in the Court's constitutional analysis until the mid-20th century). The plurality's balancing analysis also casts doubt on the constitutionality of incidental burdens on the right to counsel. For the most part, the Court's precedents hold that a generally applicable law placing only an incidental burden on a constitutional right does not violate that right. See R. A. V. v. St. Paul, 505 U. S. 377, 389-390 (1992) (explaining that content-neutral laws do not violate the First Amendment simply because they incidentally burden expressive conduct); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878-882 (1990) (likewise for religion-neutral laws that burden religious exercise). Criminal-procedure rights tend to follow the normal incidental-burden rule. The Constitution does not "forbi[d] every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights." Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973). The threat of more severe charges if a defendant refuses to plead guilty does not violate his right to trial. See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). And, in my view, prosecutorial arguments that raise the "cost" of remaining silent do not violate a defendant's right against self-incrimination (at least as a matter of original meaning). See Mitchell v. United States, 526 U. S. 314, 342-343 (1999) (Thomas, J., dissenting); id., at 331-336 (Scalia, J., dissenting). The Sixth Amendment arguably works the same way. "[A] defendant may not insist on representation by an attorney he cannot afford." Wheat v. United States, 486 U. S. 153, 159 (1988). The Constitution perhaps guarantees only a "freedom of counsel" akin to the First Amendment freedoms of speech and religion that also "depen[d] in part on one's financial wherewithal." Caplin & Drysdale, 491 U. S., at 628. Numerous laws make it more difficult for defendants to retain a lawyer. But that fact alone does not create a Sixth Amendment problem. For instance, criminal defendants must still pay taxes even though "these financial levies may deprive them of resources that could be used to hire an attorney." Id., at 631-632. So I lean toward the principal dissent's view that incidental burdens on the right to counsel of choice would not violate the Sixth Amendment. See post, at 5-6, 11-12 (opinion of Kennedy, J.). On the other hand, the Court has said that the right to counsel guarantees defendants "a fair opportunity to secure counsel of [their] choice." Powell v. Alabama, 287 U. S. 45, 52-53 (1932) (emphasis added). The state court in Powell denied the defendants such an opportunity, the Court held, by moving to trial so quickly (six days after indictment) that the defendants had no chance to communicate with family or otherwise arrange for representation. Ibid. The schedule in Powell was not designed to block counsel, which suggests the usual incidental-burden rule might be inapt in the Sixth Amendment context. I leave the question open because this case does not require an answer. The asset freeze here is not merely an incidental burden on the right to counsel of choice; it targets a defendant's assets, which are necessary to exercise that right, simply to secure forfeiture upon conviction. The prospect of that criminal punishment, however, is precisely why the Constitution guarantees a right to counsel. The Sixth Amendment does not permit the Government's bare expectancy of forfeiture to void that right. When the potential of a conviction is the only basis for interfering with a defendant's assets before trial, the Constitution requires the Government to respect the longstanding common-law protection for a defendant's untainted property. For these reasons, I concur only in the judgment.Kennedy, J., dissenting 578 U. S. ____ (2016)No. 14-419SILA LUIS, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[March 30, 2016] Justice Kennedy, with whom Justice Alito joins, dissenting. The plurality and Justice Thomas find in the Sixth Amendment a right of criminal defendants to pay for an attorney with funds that are forfeitable upon conviction so long as those funds are not derived from the crime alleged. That unprecedented holding rewards criminals who hurry to spend, conceal, or launder stolen property by assuring them that they may use their own funds to pay for an attorney after they have dissipated the proceeds of their crime. It matters not, under today's ruling, that the defendant's remaining assets must be preserved if the victim or the Government is to recover for the property wrongfully taken. By granting a defendant a constitutional right to hire an attorney with assets needed to make a property-crime victim whole, the plurality and Justice Thomas ignore this Court's precedents and distort the Sixth Amendment right to counsel. The result reached today makes little sense in cases that involve fungible assets preceded by fraud, embezzlement, or other theft. An example illustrates the point. Assume a thief steals $1 million and then wins another $1 million in a lottery. After putting the sums in separate accounts, he or she spends $1 million. If the thief spends his or her lottery winnings, the Government can restrain the stolen funds in their entirety. The thief has no right to use those funds to pay for an attorney. Yet if the thief heeds today's decision, he or she will spend the stolen money first; for if the thief is apprehended, the $1 million won in the lottery can be used for an attorney. This result is not required by the Constitution. The plurality reaches its conclusion by weighing a defendant's Sixth Amendment right to counsel of choice against the Government's interest in preventing the dissipation of assets forfeitable upon conviction. In so doing, it — like Justice Thomas — sweeps aside the decisions in Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 (1989), and United States v. Monsanto, 491 U. S. 600 (1989), both of which make clear that a defendant has no Sixth Amendment right to spend forfeitable assets (or assets that will be forfeitable) on an attorney. The principle the Court adopted in those cases applies with equal force here. Rather than apply that principle, however, the plurality and concurrence adopt a rule found nowhere in the Constitution or this Court's precedents — that the Sixth Amendment protects a person's right to spend otherwise forfeitable assets on an attorney so long as those assets are not related to or the direct proceeds of the charged crime. Ante, at 1 (plurality opinion); ante, at 1 (Thomas, J., concurring in judgment). The reasoning in these separate opinions is incorrect, and requires this respectful dissent.I This case arises from petitioner Sila Luis' indictment for conspiring to commit health care fraud against the United States. The Government alleges that, as part of her illegal scheme, Luis used her health care companies to defraud Medicare by billing for services that were not medically necessary or actually provided. The charged crimes, the Government maintains, resulted in the payment of $45 million in improper Medicare benefits to Luis' companies. The same day Luis was indicted, the Government initiated a civil action under 18 U. S. C. §1345 to restrain Luis' assets before her criminal trial, including substitute property of an amount equivalent to the value of the proceeds of her alleged crimes. To establish its entitlement to a restraining order, the Government showed that Luis and her co-conspirators were dissipating the illegally obtained assets. In particular, they were transferring money involved in the scheme to various individuals and entities, including shell corporations owned by Luis' family members. As part of this process, Luis opened and closed well over 40 bank accounts and withdrew large amounts of cash to hide the conspiracy's proceeds. Luis personally received almost $4.5 million in funds and used at least some of that money to purchase luxury items, real estate, and automobiles, and to travel. Based on this and other evidence, the District Court entered an order prohibiting Luis from spending up to $45 million of her assets. Before the Court of Appeals for the Eleventh Circuit, Luis argued that the Sixth Amendment required that she be allowed to spend the restrained substitute assets on an attorney. The Court of Appeals disagreed, concluding that "[t]he arguments made by Luis . . . are foreclosed by the United States Supreme Court decisions in . . . Caplin & Drysdale [and] Monsanto." 564 Fed. Appx. 493, 494 (2014) ( per curiam). In my view the Court of Appeals was correct, and its judgment should be affirmed.IIA In Caplin & Drysdale, a law firm had represented a defendant charged with running a massive drug-distribution scheme. The defendant pleaded guilty and agreed to forfeit his assets. The law firm then sought to recover a portion of the forfeited assets for its legal fees. The firm argued that, when a defendant needs forfeitable assets to pay for an attorney, the forfeiture of those assets violates the defendant's Sixth Amendment right to be represented by his counsel of choice. The Court rejected the firm's argument. The Sixth Amendment, the Court explained, "guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Caplin & Drysdale, 491 U. S., at 624. As for the right to choose one's own attorney, the Court observed that "nothing in [the forfeiture statute] prevents a defendant from hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant's counsel." Id., at 625. Even defendants who possess "nothing but assets the Government seeks to have forfeited . . . may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future." Ibid. The burden imposed by forfeiture law, the Court concluded, is thus "a limited one." Ibid. Caplin & Drysdale also repudiated the firm's contention that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. In light of the importance of separating criminals from their ill-gotten gains and providing restitution to victims of crime, the Court found "a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense." Id., at 631. The same day the Court decided Caplin & Drysdale it decided Monsanto, which addressed the pretrial restraint of a defendant's assets "where the defendant seeks to use those assets to pay an attorney." 491 U. S., at 602. The Court rejected the notion that there is a meaningful distinction, for Sixth Amendment purposes, between the restraint of assets before trial and the forfeiture of assets after trial: "[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial." Id., at 616. The Court noted, moreover, that "it would be odd to conclude that the Government may not restrain property . . . in [a defendant's] possession, based on a finding of probable cause, when we have held that (under appropriate circumstances), the Government may restrain persons where there is a finding of probable cause." Id., at 615-616. When a defendant himself can be restrained pretrial, there is "no constitutional infirmity" in a similar pretrial restraint of a defendant's property "to protect its 'appearance' at trial and protect the community's interest in full recovery of any ill-gotten gains." Id., at 616.B The principle the Court announced in Caplin & Drysdale and Monsanto controls the result here. Those cases establish that a pretrial restraint of assets forfeitable upon conviction does not contravene the Sixth Amendment even when the defendant possesses no other funds with which to pay for an attorney. The restraint itself does not prevent a defendant from seeking to convince his or her counsel of choice to take on the representation without advance payment. See Caplin & Drysdale, 491 U. S., at 625. It does not disqualify any attorney the defendant might want. Ibid. And it does not prevent a defendant from borrowing funds to pay for an attorney who is otherwise too expensive. To be sure, a pretrial restraint may make it difficult for a defendant to secure counsel who insists that high defense costs be paid in advance. That difficulty, however, does not result in a Sixth Amendment violation any more than high taxes or other government exactions that impose a similar burden. See, e.g., id., at 631-632 ("Criminal defendants . . . are not exempted from federal, state, and local taxation simply because these financial levies may deprive them of resources that could be used to hire an attorney"). The pretrial restraint in Monsanto was no more burdensome than the pretrial restraint at issue here. Luis, like the defendant in Monsanto, was not barred from obtaining the assistance of any particular attorney. She was free to seek lawyers willing to represent her in the hopes that their fees would be paid at some future point. In short, §1345's authorization of a pretrial restraint of substitute assets places no greater burden on a defendant like Luis than the forfeiture and pretrial restraint statute placed on the defendant in Monsanto. In addition, the Government has the same "strong . . . interest in obtaining full recovery of all forfeitable assets" here as it did in Caplin & Drysdale and Monsanto. See Caplin & Drysdale, supra, at 631. If Luis is convicted, the Government has a right to recover Luis' substitute assets — the money she kept for herself while spending the taxpayer dollars she is accused of stealing. Just as the Government has an interest in ensuring Luis' presence at trial — an interest that can justify a defendant's pretrial detention — so too does the Government have an interest in ensuring the availability of her substitute assets after trial, an interest that can justify pretrial restraint. One need look no further than the Court's concluding words in Monsanto to know the proper result here: "[N]o constitutional violation occurs when, after probable cause [to believe that a defendant's assets will be forfeitable] is adequately established, the Government obtains an order barring a defendant from . . . dissipating his assets prior to trial." 491 U. S., at 616. The Government, having established probable cause to believe that Luis' substitute assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from spending those funds prior to trial. Luis should not be allowed to circumvent that restraint by using the funds to pay for a high, or even the highest, priced defense team she can find.III The plurality maintains that Caplin & Drysdale and Monsanto do not apply because "the nature of the assets at issue here differs from the assets at issue in those earlier cases." Ante, at 5. According to the plurality, the property here "belongs to the defendant, pure and simple." Ibid. It states that, while "title to property used to commit a crime . . . often passes to the Government at the instant the crime is planned or committed," title to Luis' untainted property has not passed to the Government. Ante, at 6. "That fact," the plurality concludes, "undermines the Government's reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was 'tainted,' and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of) the assets." Ibid. These conclusions depend upon a key premise: The Government owns tainted assets before a defendant is convicted. That premise is quite incorrect, for the common law and this Court's precedents establish that the opposite is true. The Government does not own property subject to forfeiture, whether tainted or untainted, until the Government wins a judgment of forfeiture or the defendant is convicted. As Blackstone noted with emphasis, "goods and chattels are forfeited by conviction." 4 W. Blackstone, Commentaries on the Laws of England 380 (1769) (Blackstone). Justice Story likewise observed that "no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offence; but the right attached only by the conviction of the offender." The Palmyra, 12 Wheat. 1, 14 (1827); ibid. ("In the contemplation of the common law, the offender's right was not devested until the conviction"). These authorities demonstrate that Caplin & Drysdale and Monsanto cannot be distinguished based on "the nature of the assets at issue." Title to the assets in those cases did not pass from the defendant to the Government until conviction. As a result, the assets restrained before conviction in Monsanto were on the same footing as the assets restrained here: There was probable cause to believe that the assets would belong to the Government upon conviction. But when the court issued its restraining order, they did not. The Government had no greater ownership interest in Monsanto's tainted assets than it has in Luis' substitute assets. The plurality seeks to avoid this conclusion by relying on the relation-back doctrine. In its view the doctrine gives the Government title to tainted assets upon the commission of a crime rather than upon conviction or judgment of forfeiture. Even assuming, as this reasoning does, that the relation-back doctrine applies only to tainted assets — but see United States v. McHan, 345 F. 3d 262, 270-272 (CA4 2003)--the doctrine does not do the work the plurality's analysis requires. The relation-back doctrine, which is incorporated in some forfeiture statutes, see, e.g., 21 U. S. C. §853(c), has its origins in the common law. Under this legal construct, the Government's title to certain types of forfeitable property relates back to the time at which the defendant committed the crime giving rise to the forfeiture. See 4 Blackstone 375 ("forfeiture [of real estates] relates backwards to the time of the treason committed; so as to avoid all intermediate sales and incumbrances"); United States v. Parcel of Rumson, N. J., Land, 507 U. S. 111, 125 (1993) (plurality opinion). The doctrine's purpose is to prevent defendants from avoiding forfeiture by transferring their property to third parties. The doctrine, however, does not alter the time at which title to forfeitable property passes to the Government. Title is transferred only when a conviction is obtained or the assets are otherwise forfeited; it is only once this precondition is met that relation back to the time of the offense is permitted. See ibid. (The relation-back doctrine's "fictional and retroactive vesting" is "not self-executing"); id., at 132 (Scalia, J., concurring in judgment) ("The relation-back rule applies only in cases where the Government's title has been consummated by seizure, suit, and judgment, or decree of condemnation, whereupon the doctrine of relation carries back the title to the commission of the offense" (internal quotation marks, brackets, and citations omitted)); United States v. Grundy, 3 Cranch 337, 350-351 (1806) (Marshall, C. J., opinion for the Court) (a forfeitable asset does not "ves[t] in the government until some legal step shall be taken for the assertion of its right"); 4 Blackstone 375 ("But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had"). In short, forfeitable property does not belong to the Government in any sense before judgment or conviction. Cf. ante, at 9 (plurality opinion). Until the Government wins a judgment or conviction, "someone else owns the property." Parcel of Rumson, supra, at 127. The plurality is correct to note that Caplin & Drysdale discussed the relation-back provision in the forfeiture statute at issue. The Caplin & Drysdale Court did not do so, however, to suggest that forfeitable assets can be restrained only when the assets are tainted. Rather, the Court referred to the provision to rebut the law firm's argument that the United States has less of an interest in forfeitable property than robbery victims have in their stolen property. 491 U. S., at 627-628. More to the point, central to the Court's decision was its observation that, because the Government obtained "title to [the defendant's] assets upon conviction," it would be "peculiar" to hold that the Sixth Amendment still gave the defendant the right to pay his attorney with those assets. Id., at 628. Monsanto reinforced that view, holding that the pretrial restraint of assets — money to which the Government does not yet have title — is permissible even when the defendant wants to use those assets to pay for counsel. 491 U. S., at 616. True, the assets in Caplin & Drysdale and Monsanto happened to be derived from the criminal activity alleged; but the Court's reasoning in those cases was based on the Government's entitlement to recoup money from criminals who have profited from their crimes, not on tracing or identifying the actual assets connected to the crime. For this reason, the principle the Court announced in those cases applies whenever the Government obtains (or will obtain) title to assets upon conviction. Nothing in either case depended on the assets being tainted or justifies refusing to apply the rule from those cases here. The plurality makes much of various statutory provisions that, in its view, give the United States a superior interest before trial in tainted assets but not untainted ones. See ante, at 8-9. That view, however, turns not on any reasoning specific to the Sixth Amendment but rather on Congress' differential treatment of tainted versus untainted assets. The plurality makes no attempt to explain why Congress' decision in §1345 to permit the pretrial restraint of substitute assets is not also relevant to its analysis. More to the point, Congress' statutory treatment of property is irrelevant to a Sixth Amendment analysis. The protections afforded by the Sixth Amendment should not turn on congressional whims. The plurality's concern over the implications of the Government's position appears animated by a hypothetical future case where a defendant's assets are restrained not to return stolen funds but, for example, to pay a fine. That case, however, is not the case before the Court. Section 1345 authorizes pretrial restraints to preserve substitute assets, not to provide for fines greater than the amounts stolen. The holdings in Caplin & Drysdale and Monsanto, and what should be the holding today, thus, do not address the result in a case involving a fine. The governmental interests at stake when a fine is at issue are quite separate and distinct from the interests implicated here. This case implicates the Government's interest in preventing the dissipation, transfer, and concealment of stolen funds, as well as its interest in preserving for victims any funds that remain. Those interests justify, in cases like this one, the pretrial restraint of substitute assets.IV The principle the plurality and Justice Thomas announce today — that a defendant has a right to pay for an attorney with forfeitable assets so long as those assets are not related to or the direct proceeds of the crime alleged — has far-reaching implications. There is no clear explanation why this principle does not extend to the exercise of other constitutional rights. "If defendants have a right to spend forfeitable assets on attorney's fees, why not on exercises of the right to speak, practice one's religion, or travel?" Caplin & Drysdale, 491 U. S., at 628. Nor does either opinion provide any way to distinguish between the restraint at issue here and other governmental interferences with a defendant's assets. If the restraint of Luis' assets violates the Sixth Amendment, could the same be said of any imposition on a criminal defendant's assets? Cf. id., at 631 ("[S]eizures of assets to secure potential tax liabilities . . . may impair a defendant's ability to retain counsel . . . [y]et these assessments have been upheld against constitutional attack"). If a defendant is fined in a prior matter, is the Government barred from collecting the fine if it will leave the defendant unable to afford a particular attorney in a current case? No explanation is provided for what, if any, limits there are on the invented exemption for attorney's fees. The result today also creates arbitrary distinctions between defendants. Money, after all, is fungible. There is no difference between a defendant who has preserved his or her own assets by spending stolen money and a defendant who has spent his or her own assets and preserved stolen cash instead. Yet the plurality and concurrence — for different reasons — find in the Sixth Amendment the rule that greater protection is given to the defendant who, by spending, laundering, exporting, or concealing stolen money first, preserves his or her remaining funds for use on an attorney. The true winners today are sophisticated criminals who know how to make criminal proceeds look untainted. They do so every day. They "buy cashier's checks, money orders, nonbank wire transfers, prepaid debit cards, and traveler's checks to use instead of cash for purchases or bank deposits." Dept. of Treasury, National Money Laundering Risk Assessment 2015, p. 3. They structure their transactions to avoid triggering recordkeeping and reporting requirements. Ibid. And they open bank accounts in other people's names and through shell companies, all to disguise the origins of their funds. Ibid. The facts of this case illustrate the measures one might take to conceal or dispose of ill-gotten gains. In declarations relied on by the District Court, the Federal Bureau of Investigation (FBI) Special Agent investigating the case explained that "Luis transferred monies or caused the transfer of monies received from Medicare to . . . family members and companies owned by family members," including $1,471,000 to her husband, and over a million dollars to her children and former daughter-in-law. App. 72-73. She also "used Medicare monies for foreign travel," including approximately 31 trips to Mexico, "where she owns several properties and has numerous bank accounts." Id., at 73. She "transferred Medicare monies overseas through international wire transfers to Mexico." Ibid. And the Government was "able to trace Medicare proceeds going into [all but one of the] bank account[s] owned by Defendant Luis and/or her companies listed in the Court's" temporary restraining order. Id., at 74. No doubt Luis would have enjoyed her travel and expenditures even more had she known that, were her alleged wrongs discovered, a majority of the Justices would insist that she be allowed to pay her chosen legal team at the price they set rather than repay her victim. Notwithstanding that the Government established probable cause to believe that Luis committed numerous crimes and used the proceeds of those crimes to line her and her family's pockets, the plurality and Justice Thomas reward Luis' decision to spend the money she is accused of stealing rather than her own. They allow Luis to bankroll her private attorneys as well as "the best and most industrious investigators, experts, paralegals, and law clerks" money can buy — a legal defense team Luis claims she cannot otherwise afford. See Corrected Motion to Modify the Restraining Order in No. 12-Civ-23588, p. 13 (SD Fla., Nov. 16, 2012). The Sixth Amendment does not provide such an unfettered right to counsel of choice. It is well settled that the right to counsel of choice is limited in important respects. A defendant cannot demand a lawyer who is not a member of the bar. Wheat v. United States, 486 U. S. 153, 159 (1988). Nor may a defendant insist on an attorney who has a conflict of interest. Id., at 159, 164. And, as quite relevant here, "a defendant may not insist on representation by an attorney he cannot afford." Id., at 159. As noted earlier, "those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Caplin & Drysdale, 491 U. S., at 624. As a result of the District Court's order, Luis simply cannot afford the legal team she desires unless they are willing to represent her without advance payment. For Sixth Amendment purposes, the only question here is whether Luis' right to adequate representation is protected. That question is not before the Court. Neither Luis nor the plurality nor Justice Thomas suggests that Luis will receive inadequate representation if she is not able to use the restrained funds. And this is for good reason. Given the large volume of defendants in the criminal justice system who rely on public representation, it would be troubling to suggest that a defendant who might be represented by a public defender will receive inadequate representation. See generally T. Giovanni & R. Patel, Gideon at 50: Three Reforms to Revive the Right to Counsel 1 (2013), online at http://www.brennancenter.org/sites/default/files/publications/Gideon_Report_040913.pdf (as last visited Mar. 28, 2016). Since Luis cannot afford the legal team she desires, and because there is no indication that she will receive inadequate representation as a result, she does not have a cognizable Sixth Amendment complaint. The plurality does warn that accepting the Government's position "would — by increasing the government-paid-defender workload — render less effective the basic right the Sixth Amendment seeks to protect." Ante, at 15. Public-defender offices, the plurality suggests, already lack sufficient attorneys to meet nationally recommended caseload standards. Ibid. But concerns about the caseloads of public-defender offices do not justify a constitutional command to treat a defendant accused of committing a lucrative crime differently than a defendant who is indigent from the outset. The Constitution does not require victims of property crimes to fund subsidies for members of the private defense bar. Because the rule announced today is anchored in the Sixth Amendment, moreover, it will frustrate not only the Federal Government's use of §1345 but also the States' administration of their forfeiture schemes. Like the Federal Government, States also face criminals who engage in money laundering through extensive enterprises that extend to other States and beyond. Where a defendant has put stolen money beyond a State's reach, a State should not be precluded from freezing the assets the defendant has in hand. The obstacle that now stands in the States' way is not found in the Constitution. It is of the Court's making. Finally, the plurality posits that its decision "should prove workable" because courts "have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer." Ante, at 15-16. Neither of these assurances is adequate. As to the first, the plurality cites a number of sources for the proposition that courts have rules that allow them to implement the distinction it adopts. Ibid. Those rules, however, demonstrate the illogic of the conclusion that there is a meaningful difference between the actual dollars stolen and the dollars of equivalent value in a defendant's bank account. The plurality appears to agree that, if a defendant is indicted for stealing $1 million, the Government can obtain an order preventing the defendant from spending the $1 million he or she is believed to have stolen. The situation gets more complicated, however, when the defendant deposits the stolen $1 million into an account that already has $1 million. If the defendant then spends $1 million from the account, it cannot be determined with certainty whether the money spent was stolen money rather than money the defendant already had. The question arises, then, whether the Government can restrain the remaining million. One of the treatises on which the plurality relies answers that question. The opinion cites A. Scott's Law of Trusts to support the claim that "the law has tracing rules that help courts implement the kind of distinction . . . require[d] in this case." Ante, at 15-16. The treatise says that, if a "wrongdoer has mingled misappropriated money with his own money and later makes withdrawals from the mingled fund," assuming the withdrawals do not result in a zero balance, a person who has an interest in the misappropriated money can recover it from the amount remaining in the account. 4 A. Scott, Law of Trusts §518, pp. 3309-3310 (1956). Based on this rule, one would expect the plurality to agree that, in the above hypothetical, the Government could restrain up to the full amount of the stolen funds — that is, the full $1 million — without having to establish whether the $1 million the defendant spent was stolen money or not. If that is so, it is hard to see why its opinion treats as different a situation where the defendant has two bank accounts — one with the $1 million from before the crime and one with the stolen $1 million. If the defendant spends the money in the latter account, the Government should be allowed to freeze the money in the former account in the same way it could if the defendant spent the money out of a single, commingled account. The Sixth Amendment provides no justification for the decision to mandate different treatment in these all-but-identical situations. The plurality sees "little reason to worry" about defendants circumventing forfeiture because courts can use rules like the tracing rule discussed above. Ante, at 16. It also asserts that these rules "will likely . . . prevent Luis from benefiting from many of [her] money transfers and purchases." Ibid. That proposition is doubtful where, as here, "a lot of money was taken out in cash from the defendant's bank accounts" because "[y]ou can't trace cash." App. 155. Even were that not the case, this assertion fails to appreciate that it takes time to trace tainted assets. As the FBI agent testified, at the time of the hearing both the tracing and the FBI's analysis were "still ongoing." Ibid. The whole purpose of a pretrial restraint under §1345 is to maintain the status quo in cases, like this one, where a defendant is accused of committing crimes that involve fungible property, e.g., a banking law violation or a federal health care offense. The plurality's approach serves to benefit the most sophisticated of criminals whose web of transfers and concealment will take the longest to unravel. For if the Government cannot establish at the outset that every dollar subject to restraint is derived from the crime alleged, the defendant can spend that money on whatever defense team he or she desires. Of equal concern is the assertion that a defendant's right to counsel of choice is limited to only those attorneys who charge a "reasonable fee." Ante, at 16. If Luis has a right to use the restrained substitute assets to pay for the counsel of her choice, then why can she not hire the most expensive legal team she can afford? In the plurality's view, the reason Luis can use the restrained funds for an attorney is because they are still hers. But if that is so, then she should be able to use all $2 million of her remaining assets to pay for a lawyer. The plurality's willingness to curtail the very right it recognizes reflects the need to preserve substitute assets from further dissipation.* * * Today's ruling abandons the principle established in Caplin & Drysdale and Monsanto. In its place is an approach that creates perverse incentives and provides protection for defendants who spend stolen money rather than their own. In my respectful view this is incorrect, and the judgment of the Court of Appeals should be affirmed.Kagan, J., dissenting 578 U. S. ____ (2016)No. 14-419SILA LUIS, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[March 30, 2016] Justice Kagan, dissenting. I find United States v. Monsanto, 491 U. S. 600 (1989), a troubling decision. It is one thing to hold, as this Court did in Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 (1989), that a convicted felon has no Sixth Amendment right to pay his lawyer with funds adjudged forfeitable. Following conviction, such assets belong to the Government, and "[t]here is no constitutional principle that gives one person the right to give another's property to a third party." Id., at 628. But it is quite another thing to say that the Government may, prior to trial, freeze assets that a defendant needs to hire an attorney, based on nothing more than "probable cause to believe that the property will ultimately be proved forfeitable." Monsanto, 491 U. S., at 615. At that time, "the presumption of innocence still applies," and the Government's interest in the assets is wholly contingent on future judgments of conviction and forfeiture. Kaley v. United States, 571 U. S. ___, ___ (2014) (slip op., at 6). I am not altogether convinced that, in this decidedly different circumstance, the Government's interest in recovering the proceeds of crime ought to trump the defendant's (often highly consequential) right to retain counsel of choice. But the correctness of Monsanto is not at issue today. Petitioner Sila Luis has not asked this Court either to overrule or to modify that decision; she argues only that it does not answer the question presented here. And because Luis takes Monsanto as a given, the Court must do so as well. On that basis, I agree with the principal dissent that Monsanto controls this case. See ante, at 5-7 (opinion of Kennedy, J.). Because the Government has established probable cause to believe that it will eventually recover Luis's assets, she has no right to use them to pay an attorney. See Monsanto, 491 U. S., at 616 ("[N]o constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from . . . dissipating his assets prior to trial"). The plurality reaches a contrary result only by differentiating between the direct fruits of criminal activity and substitute assets that become subject to forfeiture when the defendant has run through those proceeds. See ante, at 5-6. But as the principal dissent shows, the Government's and the defendant's respective legal interests in those two kinds of property, prior to a judgment of guilt, are exactly the same: The defendant maintains ownership of either type, with the Government holding only a contingent interest. See ante, at 7-10. Indeed, the plurality's use of the word "tainted," to describe assets at the pre-conviction stage, makes an unwarranted assumption about the defendant's guilt. See ante, at 5 (characterizing such assets as, for example, "robber's loot"). Because the Government has not yet shown that the defendant committed the crime charged, it also has not shown that allegedly tainted assets are actually so. And given that money is fungible, the plurality's approach leads to utterly arbitrary distinctions as among criminal defendants who are in fact guilty. See ante, at 12 (opinion of Kennedy, J.). The thief who immediately dissipates his ill-gotten gains and thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants. I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality's effort to cabin Monsanto. Accordingly, I would affirm the judgment below. |
7 | In her complaint filed in the District Court, respondent alleged that her son died as a result of injuries sustained while performing sandblasting aboard a vessel berthed in the navigable waters of the United States. She further asserted that the injuries were caused by the negligence of petitioner and another, and prayed for damages under general maritime law. The District Court dismissed the complaint for failure to state a federal claim, stating that no cause of action exists, under general maritime law, for death resulting from negligence. The Fourth Circuit reversed, explaining that although this Court had not yet recognized a maritime cause of action for wrongful death resulting from negligence, the principles contained in Moragne v. States Marine Lines, Inc., 398 U. S. 375, made such an action appropriate.Held: The general maritime cause of action recognized in Moragne — for death caused by violation of maritime duties, id., at 409 — is available for the negligent breach of a maritime duty of care. Although Moragne's opinion did not limit its rule to any particular maritime duty, Moragne's facts were limited to the duty of seaworthiness, and so the issue of wrongful death for negligence has remained technically open. There is no rational basis, however, for distinguishing negligence from unseaworthiness. Negligence is no less a maritime duty than seaworthiness, and the choice-of-law and remedial anomalies provoked by withholding a wrongful death remedy are no less severe. Nor is a negligence action precluded by any of the three relevant federal statutes that provide remedies for injuries and death suffered in admiralty: the Jones Act, the Death on the High Seas Act, and the Longshore and Harbor Workers' Compensation Act. Because of Congress's extensive involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress. See, e.g., American Dredging Co. v. Miller, 510 U. S. 443, 455. The cause of action recognized today, however, is new only in the most technical sense. The general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury. Pp. 2-9.210 F. 3d 209, affirmed. Scalia, J., delivered the opinion of the Court, Parts I, II-A, and II-B-1 of which were unanimous, and Part II-B-2 of which was joined by Rehnquist, C. J., and Stevens, O'Connor, Kennedy, and Thomas, JJ. Ginsburg, J., filed an opinion concurring in part, in which Souter and Breyer, JJ., joined.NORFOLK SHIPBUILDING & DRYDOCK CORPORA-TION, PETITIONER v. CELESTINE GARRIS,administratrix of the ESTATE OFCHRISTOPHER GARRIS,DECEASEDon writ of certiorari to the united states court of appeals for the fourth circuit[June 4, 2001] Justice Scalia delivered the opinion of the Court. The question presented in this case is whether the negligent breach of a general maritime duty of care is actionable when it causes death, as it is when it causes injury.I According to the complaint that respondent filed in the United States District Court for the Eastern District of Virginia, her son, Christopher Garris, sustained injuries on April 8, 1997, that caused his death one day later. App. to Pet. for Cert. 53. The injuries were suffered while Garris was performing sandblasting work aboard the USNS Maj. Stephen W. Pless in the employ of Tidewater Temps, Inc., a subcontractor for Mid-Atlantic Coatings, Inc., which was in turn a subcontractor for petitioner Norfolk Shipbuilding & Drydock Corporation. And the injuries were caused, the complaint continued, by the negligence of petitioner and one of its other subcontractors, since dismissed from this case. Because the vessel was berthed in the navigable waters of the United States when Garris was injured, respondent invoked federal admiralty jurisdiction, U. S. Const., Art. III, §2, cl. 1; 28 U. S. C. §1333, and prayed for damages under general maritime law. She also asserted claims under the Virginia wrongful death statute, Va. Code Ann. §§8.01-50 to 8.01-56 (2000). The District Court dismissed the complaint for failure to state a federal claim, for the categorical reason that "no cause of action exists, under general maritime law, for death of a nonseaman in state territorial waters resulting from negligence." No. Civ. A. 2:98CV382, 1998 WL 1108934, *1 (ED Va., Aug. 31, 1998) (unpublished). The United States Court of Appeals for the Fourth Circuit reversed and remanded for further proceedings, explaining that although this Court had not yet recognized a maritime cause of action for wrongful death resulting from negligence, the principles contained in our decision in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), made such an action appropriate. 210 F. 3d 209, 211 (2000). Judge Hall concurred in the judgment because, in her view, Moragne had itself recognized the action. Id., at 222-227. The Court of Appeals denied petitioner's suggestion for rehearing en banc, with two judges dissenting. 215 F. 3d 420 (2000). We granted certiorari. 531 U. S. 1050 (2000).II Three of four issues of general maritime law are settled, and the fourth is before us. It is settled that the general maritime law imposes duties to avoid unseaworthiness and negligence, see, e.g., Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 549-550 (1960) (unseaworthiness); Leathers v. Blessing, 105 U. S. 626, 630 (1882) (negligence), that nonfatal injuries caused by the breach of either duty are compensable, see, e.g., Mahnich v. Southern S. S. Co., 321 U. S. 96, 102-103 (1944) (unseaworthiness); Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, 457 (1925) (negligence), and that death caused by breach of the duty of seaworthiness is also compensable, Moragne v. States Marine Lines, Inc., supra, at 409. Before us is the question whether death caused by negligence should, or must under direction of a federal statute, be treated differently.A For more than 80 years, from 1886 until 1970, all four issues were considered resolved, though the third not in the manner we have just described. The governing rule then was the rule of The Harrisburg, 119 U. S. 199, 213 (1886): Although the general maritime law provides relief for injuries caused by the breach of maritime duties, it does not provide relief for wrongful death. The Harrisburg said that rule was compelled by existence of the same rule at common law, id., at 213-214 — although it acknowledged, id., at 205-212, that admiralty courts had held that damages for wrongful death were recoverable under maritime law, see also Moragne, supra, at 387-388 (listing cases). In 1969, however, we granted certiorari in Moragne v. States Marine Lines, Inc., supra, for the express purpose of considering "whether The Harrisburg ... should any longer be regarded as acceptable law." 398 U. S., at 375-376. We inquired whether the rule of The Harrisburg was defensible under either the general maritime law or the policy displayed in the maritime statutes Congress had since enacted, 398 U. S., at 379-393, whether those statutes pre-empted judicial action overruling The Harrisburg, 398 U. S., at 393-403, whether stare decisis required adherence to The Harrisburg, 398 U. S., at 403-405, and whether insuperable practical difficulties would accompany The Harrisburg's overruling, 398 U. S., at 405-408. Answering every question no, we overruled the case and declared a new rule of maritime law: "We ... hold that an action does lie under general maritime law for death caused by violation of maritime duties." Id., at 409. As we have noted in an earlier opinion, the wrongful-death rule of Moragne was not limited to any particular maritime duty, Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U. S. 199, 214, n. 11 (1996) (dictum), but Moragne's facts were limited to the duty of seaworthiness, and so the issue of wrongful death for negligence has remained technically open. We are able to find no rational basis, however, for distinguishing negligence from seaworthiness. It is no less a distinctively maritime duty than seaworthiness: The common-law duties of care have not been adopted and retained unmodified by admiralty, but have been adjusted to fit their maritime context, see, e.g., Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 630-632 (1959), and a century ago the maritime law exchanged the common law's rule of contributory negligence for one of comparative negligence, see, e.g., The Max Morris, 137 U. S. 1, 14-15 (1890); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 408-409 (1953). Consequently the "tensions and discrepancies" in our precedent arising "from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts"--which ultimately drove this Court in Moragne to abandon The Harrisburg, see 361 U. S. 314 (1960); Goett v. Union Carbide Corp., 361 U. S. 340 (1960) (per curiam)); see also Nelson v. United States, 639 F. 2d 469, 473 (CA9 1980) (opinion by then-Judge Kennedy) (concluding that uniformity concerns required Moragne's application to negligence). It is true, as petitioner observes, that we have held admiralty accommodation of state remedial statutes to be constitutionally permissible, see, e.g., Western Fuel Co. v. Garcia, 257 U. S. 233, 242 (1921); The Tungus v. Skovgaard, 358 U. S. 588, 594 (1959),1 but that does not resolve the issue here: whether requiring such an accommodation by refusing to recognize a federal remedy is preferable as a matter of maritime policy. We think it is not. The choice-of-law anomaly occasioned by providing a federal remedy for injury but not death is no less strange when the duty is negligence than when it is seaworthiness. Of two victims injured at the same instant in the same location by the same negligence, only one would be covered by federal law, provided only that the other died of his injuries. See, e.g., Byrd v. Napoleon Avenue Ferry Co., 125 F. Supp. 573, 578 (ED La. 1954) (in case involving single car accident on ferry, applying state negligence law to claim for deceased husband's wrongful death but federal maritime negligence law to claim for surviving wife's injuries), aff'd, 227 F. 2d 958 (CA5 1955) (per curiam). And cutting off the law's remedy at the death of the injured person is no less "a striking departure from the result dictated by elementary principles in the law of remedies," Moragne v. States Marine Lines, Inc., 398 U. S., at 381, when the duty breached is negligence than when it is seaworthiness. "Where existing law imposes a primary duty, violations of which are compensable if they cause injury, nothing in ordinary notions of justice suggests that a violation should be nonactionable simply because it was serious enough to cause death." Ibid. Finally, the maritime policy favoring recovery for wrongful death that Moragne found implicit in federal statutory law cannot be limited to unseaworthiness, for both of the federal acts on which Moragne relied permit recovery for negligence, see Jones Act, 46 U. S. C. App. §688(a); Death on the High Seas Act (DOHSA), 46 U. S. C. App. §761 et seq.; see also Engel v. Davenport, 271 U. S. 33, 36-37 (1926) (Jones Act). In sum, a negligent breach of a maritime duty of care being assumed by the posture of this case,2 no rational basis within the maritime law exists for denying respondent the recovery recognized by Moragne for the death of her son.B Weightier arguments against recognizing a wrongful-death action for negligence may be found not within general maritime law but without, in the federal statutes that provide remedies for injuries and death suffered in admiralty. As we explained in Miles v. Apex Marine Corp., 498 U. S. 19, 27 (1990), "[w]e no longer live in an era when seamen and their loved ones must look primarily to the courts as a source of substantive legal protection from injury and death; Congress ... [has] legislated extensively in these areas." And, even in admiralty, "we have no authority to substitute our views for those expressed by Congress in a duly enacted statute." Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 626 (1978). Hence, when a statute resolves a particular issue, we have held that the general maritime law must comply with that resolution. See, e.g., Dooley v. Korean Air Lines Co., 524 U. S. 116, 123-124 (1998). We must therefore make careful study of the three statutes relevant here.1 The Jones Act, 46 U. S. C. App. §688(a), establishes a cause of action for negligence for injuries or death suffered in the course of employment, but only for seamen. See generally Chandris, Inc. v. Latsis, 515 U. S. 347 (1995) (describing test for seaman status). Respondent's son, who was not a seaman, was not covered by the Jones Act, and we have held that the Jones Act bears no implication for actions brought by nonseamen. See, e.g., American Export Lines, Inc. v. Alvez, 446 U. S. 274, 282-283 (1980). Moreover, even as to seamen, we have held that general maritime law may provide wrongful-death actions predicated on duties beyond those that the Jones Act imposes. See, e.g., Miles v. Apex Marine Corp., supra, at 28-30 (seaworthiness). The Jones Act does not preclude respondent's negligence action. DOHSA creates wrongful-death actions for negligence and unseaworthiness, see Moragne, supra, at 395, but only by the personal representatives of people killed "beyond a marine league from the shore of any State," 46 U. S. C. App. §761. Respondent's son was killed in state territorial waters, where DOHSA expressly provides that its provisions "shall ... [not] apply," §767. In Moragne, after discussing the anomalies that would result if DOHSA were interpreted to preclude federal maritime causes of action even where its terms do not apply, 398 U. S., at 395-396, we held that DOHSA "was not intended to preclude the availability of a remedy for wrongful death under general maritime law in situations not covered by the Act," id., at 402. Or, "[t]o put it another way, ... no intention appears that the Act have the effect of foreclosing any nonstatutory federal remedies that might be found appropriate to effectuate the policies of general maritime law." Id., at 400. DOHSA therefore does not pre-empt respondent's negligence action. Finally, the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. 1424, as amended, 33 U. S. C. §901 et seq., provides nonseaman maritime workers such as respondent's son, see §902(3) (defining covered employees), with no-fault workers' compensation claims (against their employer, §904(b)) and negligence claims (against the vessel, §905(b)) for injury and death. As to those two defendants, the LHWCA expressly pre-empts all other claims, §§905(a), (b); but cf. Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715, 723-726 (1980) (holding some state workers' compensation claims against employer not pre-empted), but it expressly preserves all claims against third parties, §§933(a), (i). And petitioner is a third party: It neither employed respondent's son nor owned the vessel on which he was killed. Petitioner argues, however, that §933's preservation-of-other-claims provisions express Congress's intent to reserve all other wrongful-death actions to the States. That argument cannot withstand our precedent, since we have consistently interpreted §933 to preserve federal maritime claims as well as state claims, see, e.g., Seas Shipping Co. v. Sieracki, 328 U. S. 85, 100-102 (1946); Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U. S. 106, 113 (1974), including maritime negligence claims, see, e.g., Pope & Talbot, Inc. v. Hawn, 445 U. S. 74, 83 (1980) ("Congress abolished the unseaworthiness remedy for longshoremen, recognized in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946)"). That amendment was directed not at wrongful death in particular, but at unseaworthiness generally, see Edmonds v. Compagnie Generale Transatlantique, 443 U. S. 256, 262 (1979) ("Congress acted in 1972, among other things, to eliminate the shipowner's liability to the longshoreman for unseaworthiness ...--in other words, to overrule Sieracki"). To the extent the amendment to §905(b) reflects any policy relevant here, it is in expressly ratifying longshore and harbor workers' claims against the vessel for negligence, see id., at 259-260. The LHWCA therefore does not preclude this negligence action for wrongful death.2 Even beyond the express pre-emptive reach of federal maritime statutes, however, we have acknowledged that they contain a further prudential effect. "While there is an established and continuing tradition of federal common lawmaking in admiralty, that law is to be developed, insofar as possible, to harmonize with the enactments of Congress in the field." American Dredging Co. v. Miller, 510 U. S. 443, 455 (1994). Cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 332-333 (1999) (equitable lawmaking power of bankruptcy courts limited by statute). Because of Congress's extensive involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes have seen fit to allow, to leave further development to Congress. The cause of action we recognize today, however, is new only in the most technical sense. The general maritime law has recognized the tort of negligence for more than a century, and it has been clear since Moragne that breaches of a maritime duty are actionable when they cause death, as when they cause injury. Congress's occupation of this field is not yet so extensive as to preclude us from recognizing what is already logically compelled by our precedents.* * * The maritime cause of action that Moragne established for unseaworthiness is equally available for negligence. We affirm the judgment of the Court of Appeals.It is so ordered.NORFOLK SHIPBUILDING & DRYDOCK CORPORA-TION, PETITIONER v. CELESTINE GARRIS,administratrix of the ESTATE OFCHRISTOPHER GARRIS,DECEASEDon writ of certiorari to the united states court of appeals for the fourth circuit[June 4, 2001] Justice Ginsburg, with whom Justice Souter and Justice Breyer join, concurring in part. I join all but Part II-B-2 of the Court's opinion. Following the reasoning in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), the Court today holds that the maritime cause of action Moragne established for unseaworthiness is equally available for negligence. I agree with the Court's clear opinion with one reservation. In Part II-B-2, the Court counsels: "Because of Congress's extensive involvement in legislating causes of action for maritime personal injuries, it will be the better course, in many cases that assert new claims beyond what those statutes ... allow, to leave further development to Congress." Ante, at 9. Moragne itself, however, tugs in the opposite direction. Inspecting the relevant legislation, the Court in Moragne found no measures counseling against the judicial elaboration of general maritime law there advanced. See 510 U. S. 443, 455 (1994)). I therefore do not join the Court's dictum.FOOTNOTESFootnote 1 The issue addressed in Yamaha Motor Corp., U. S. A. v. Calhoun, 516 U. S. 199 (1996), whether state remedies may in some instances supplement a federal maritime remedy, is not presented by this case, where respondent is no longer pursuing state remedies. After the District Court dismissed her state-law claim on jurisdictional grounds, respondent re-filed it in state court, where it was resolved against her. See Brief for Respondent 2, n. 1.Footnote 2 The District Court dismissed the case for the threshold reason that, regardless of a negligent breach, there could be no recovery. See supra, at 2. Petitioner therefore will be free to present its arguments regarding duty and breach on remand to the extent they have been preserved. |
1 | Respondent Moore and two accomplices attacked and bloodied Kenneth Rogers, tied him up, and threw him in the trunk of a car before driving into the Oregon countryside, where Moore fatally shot him. Afterwards, Moore and one accomplice told Moore's brother and the accomplice's girlfriend that they had intended to scare Rogers, but that Moore had accidentally shot him. Moore and the accomplice repeated this account to the police. On the advice of counsel, Moore agreed to plead no contest to felony murder in exchange for the minimum sentence for that offense. He later sought postconviction relief in state court, claiming that he had been denied effective assistance of counsel. He complained that his lawyer had not moved to suppress his confession to police in advance of the lawyer's advice that Moore considered before accepting the plea offer. The court concluded the suppression motion would have been fruitless in light of Moore's other admissible confession to two witnesses. Counsel gave that as his reason for not making the motion. He added that he had advised Moore that, because of the abuse Rogers suffered before the shooting, Moore could be charged with aggravated murder. That crime was punishable by death or life in prison without parole. These facts led the state court to conclude Moore had not established ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668. Moore sought federal habeas relief, renewing his ineffective-assistance claim. The District Court denied the petition, but the Ninth Circuit reversed, holding that the state court's conclusion was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279. Held: Moore was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 4-17. (a) Under 28 U. S. C. §2254(d), federal habeas relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state-court decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by" this Court. The relevant federal law is the standard for ineffective assistance of counsel under Strickland, which requires a showing of "both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U. S. ___, ___. Pp. 4-6. (b) The state-court decision was not an unreasonable application of either part of the Strickland rule. Pp. 6-16. (1) The state court would not have been unreasonable to accept as a justification for counsel's action that suppression would have been futile in light of Moore's other admissible confession to two witnesses. This explanation confirms that counsel's representation was adequate under Strickland, so it is unnecessary to consider the reasonableness of his other justification — that a suppression motion would have failed. Plea bargains involve complex negotiations suffused with uncertainty, and defense counsel must make strategic choices in balancing opportunities — pleading to a lesser charge and obtaining a lesser sentence — and risks — that the plea bargain might come before the prosecution finds its case is getting weaker, not stronger. Failure to respect the latitude Strickland requires can create at least two problems. First, the potential for distortions and imbalance that can inhere in a hindsight perspective may become all too real; and habeas courts must be mindful of their limited role, to assess deficiency in light of information then available to counsel. Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect because prosecutors must have assurances that a plea will not be undone in court years later. In applying and defining the Strickland standard — reasonable competence in representing the accused — substantial deference must be accorded to counsel's judgment. The absence of a developed and extensive record and well-defined prosecution or defense case creates a particular risk at the early plea stage. Here, Moore's prospects at trial were anything but certain. Counsel knew that the two witnesses presented a serious strategic concern and that delaying the plea for further proceedings might allow the State to uncover additional incriminating evidence in support of a capital prosecution. Under these circumstances, counsel made a reasonable choice. At the very least, the state court would not have been unreasonable to so conclude. The Court of Appeals relied further on Fulminante, but a state-court adjudication of counsel's performance under the Sixth Amendment cannot be "contrary to" Fulminante, for Fulminante — which involved the admission of an involuntary confession in violation of the Fifth Amendment — says nothing about Strickland's effectiveness standard. Pp. 6-12. (2) The state court also reasonably could have concluded that Moore was not prejudiced by counsel's actions. To prevail in state court, he had to demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U. S. 52, 59. Deference to the state court's prejudice determination is significant, given the uncertainty inherent in plea negotiations. That court reasonably could have determined that Moore would have accepted the plea agreement even if his second confession had been ruled inadmissible. The State's case was already formidable with two witnesses to an admissible confession, and it could have become stronger had the investigation continued. Moore also faced the possibility of grave punishments. Counsel's bargain for the minimum sentence for the crime of conviction was thus favorable, and forgoing a challenge to the confession may have been essential to securing that agreement. Again, the state court's finding could not be contrary to Fulminante, which does not speak to Strickland's prejudice standard or contemplate prejudice in the plea bargain context. To the extent Fulminante's harmless-error analysis sheds any light on this case, it suggests that the state court's prejudice determination was reasonable. Pp. 12-16.574 F. 3d 1092, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Breyer, Alito, and Sotomayor, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. Kagan, J., took no part in the consideration or decision of the case.JEFF PREMO, SUPERINTENDENT, OREGON STATEPENITENTIARY, PETITIONER v. RANDYJOSEPH MOOREon writ of certiorari to the united states court of appeals for the ninth circuit[January 19, 2011] Justice Kennedy delivered the opinion of the Court. This case calls for determinations parallel in some respects to those discussed in today's opinion in Harrington v. Richter, ante, p. ___. Here, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U. S. C. §2254(d), the instruction that federal habeas corpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, among other exceptions, the state court's decision denying relief involves "an unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States." And, as in Richter, the relevant clearly established law derives from Strickland v. Washington, 466 U. S. 668 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counsel did not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed to have been improperly obtained.I On December 7, 1995, respondent Randy Moore and two confederates attacked Kenneth Rogers at his home and bloodied him before tying him with duct tape and throwing him in the trunk of a car. They drove into the Oregon countryside, where Moore shot Rogers in the temple, killing him. Afterwards, Moore and one of his accomplices told two people — Moore's brother and the accomplice's girlfriend — about the crimes. According to Moore's brother, Moore and his accomplice admitted:"[T]o make an example and put some scare into Mr. Rogers ..., they had blind-folded him [and] duct taped him and put him in the trunk of the car and took him out to a place that's a little remote ... . [T]heir intent was to leave him there and make him walk home ... [Moore] had taken the revolver from Lonnie and at the time he had taken it, Mr. Rogers had slipped backwards on the mud and the gun discharged." App. 157-158. Moore and his accomplice repeated this account to the police. On the advice of counsel Moore agreed to plead no contest to felony murder in exchange for a sentence of 300 months, the minimum sentence allowed by law for the offense. Moore later filed for postconviction relief in an Oregon state court, alleging that he had been denied his right to effective assistance of counsel. He complained that his lawyer had not filed a motion to suppress his confession to police in advance of the lawyer's advice that Moore considered before accepting the plea offer. After an evidentiary hearing, the Oregon court concluded a "motion to suppress would have been fruitless" in light of the other admissible confession by Moore, to which two witnesses could testify. Id., at 140. As the court noted, Moore's trial counsel explained why he did not move to exclude Moore's confession to police:"Mr. Moore and I discussed the possibility of filing a Motion to Suppress and concluded that it would be unavailing, because ... he had previously made a full confession to his brother and to [his accomplice's girlfriend], either one of whom could have been called as a witness at any time to repeat his confession in full detail." Jordan Affidavit (Feb. 26, 1999), App. to Pet. for Cert. 70, ¶ 4.Counsel added that he had made Moore aware of the possibility of being charged with aggravated murder, which carried a potential death sentence, as well as the possibility of a sentence of life imprisonment without parole. See Ore. Rev. Stat. §163.105(1)(a) (1995). The intense and serious abuse to the victim before the shooting might well have led the State to insist on a strong response. In light of these facts the Oregon court concluded Moore had not established ineffective assistance of counsel under Strickland. Moore filed a petition for habeas corpus in the United States District Court for the District of Oregon, renewing his ineffective-assistance claim. The District Court denied the petition, finding sufficient evidence to support the Oregon court's conclusion that suppression would not have made a difference. A divided panel of the United States Court of Appeals for the Ninth Circuit reversed. Moore v. Czerniak, 574 F. 3d 1092 (2009). In its view the state court's conclusion that counsel's action did not constitute ineffective assistance was an unreasonable application of clearly established law in light of Strickland and was contrary to Arizona v. Fulminante, 499 U. S. 279 (1991). Six judges dissented from denial of rehearing en banc. 574 F. 3d, at 1162. We granted certiorari. 559 U. S. ___ (2010).II The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is defined by 28 U. S. C. §2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of §2254(d) states: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." AEDPA prohibits federal habeas relief for any claim adjudicated on the merits in state court, unless one of the exceptions listed in §2254(d) obtains. Relevant here is §2254(d)(1)'s exception "permitting relitigation where the earlier state decision resulted from an 'unreasonable application of' clearly established federal law." Richter, ante, at 11. The applicable federal law consists of the rules for determining when a criminal defendant has received inadequate representation as defined in Strickland. To establish ineffective assistance of counsel "a defendant must show both deficient performance by counsel and prejudice." Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 10). In addressing this standard and its relationship to AEDPA, the Court today in Richter, ante, at 14-16, gives the following explanation: "To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of rea-sonableness.' [Strickland,] 466 U. S., at 688. A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. Id., at 689. The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' Id., at 687. "With respect to prejudice, a challenger must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' ... " 'Surmounting Strickland's high bar is never an easy task.' Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial [or in pretrial proceedings], and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' Id., at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002); Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under 'prevailing professional norms,' not whether it deviated from best practices or most common custom. Strickland, 466 U. S., at 690. "Establishing that a state court's application of Strickland was unreasonable under §2254(d) is all the more difficult. The standards created by Strickland and §2254(d) are both 'highly deferential,' id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is 'doubly' so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11). Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under §2254(d). When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."III The question becomes whether Moore's counsel provided ineffective assistance by failing to seek suppression of Moore's confession to police before advising Moore regarding the plea. Finding that any "motion to suppress would have been fruitless," the state postconviction court concluded that Moore had not received ineffective assistance of counsel. App. 140. The state court did not specify whether this was because there was no deficient performance under Strickland or because Moore suffered no Strickland prejudice, or both. To overcome the limitation imposed by § 2254(d), the Court of Appeals had to conclude that both findings would have involved an unreasonable application of clearly established federal law. See Richter, ante, at 19-20. In finding that this standard was met, the Court of Appeals erred, for the state-court decision was not an unreasonable application of either part of the Strickland rule.A The Court of Appeals was wrong to accord scant deference to counsel's judgment, and doubly wrong to conclude it would have been unreasonable to find that the defense attorney qualified as counsel for Sixth Amendment purposes. Knowles, supra, at --- (slip op., at 11); Strickland, 466 U. S., at 687. Counsel gave this explanation for his decision to discuss the plea bargain without first challenging Moore's confession to the police: that suppression would serve little purpose in light of Moore's other full and admissible confession, to which both his brother and his accomplice's girlfriend could testify. The state court would not have been unreasonable to accept this explanation. Counsel also justified his decision by asserting that any motion to suppress was likely to fail. Reviewing the reasonableness of that justification is complicated by the possibility that petitioner forfeited one argument that would have supported its position: The Court of Appeals assumed that a motion would have succeeded because the warden did not argue otherwise. Of course that is not the same as a concession that no competent attorney would think a motion to suppress would have failed, which is the relevant question under Strickland. See Kimmelman v. Morrison; Richter, ante, at 19-20. It is unnecessary to consider whether counsel's second justification was reasonable, however, since the first and independent explanation — that suppression would have been futile — confirms that his representation was adequate under Strickland, or at least that it would have been reasonable for the state court to reach that conclusion. Acknowledging guilt and accepting responsibility by an early plea respond to certain basic premises in the law and its function. Those principles are eroded if a guilty plea is too easily set aside based on facts and circumstances not apparent to a competent attorney when actions and advice leading to the plea took place. Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks. The opportunities, of course, include pleading to a lesser charge and obtaining a lesser sentence, as compared with what might be the outcome not only at trial but also from a later plea offer if the case grows stronger and prosecutors find stiffened resolve. A risk, in addition to the obvious one of losing the chance for a defense verdict, is that an early plea bargain might come before the prosecution finds its case is getting weaker, not stronger. The State's case can begin to fall apart as stories change, witnesses become unavailable, and new suspects are identified. These considerations make strict adherence to the Strickland standard all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel's judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). AEDPA compounds the imperative of judicial caution. Second, ineffective-assistance claims that lack necessary foundation may bring instability to the very process the inquiry seeks to protect. Strickland allows a defendant "to escape rules of waiver and forfeiture," Richter, ante, at 15. Prosecutors must have assurance that a plea will not be undone years later because of infidelity to the requirements of AEDPA and the teachings of Strickland. The prospect that a plea deal will afterwards be unraveled when a court second-guesses counsel's decisions while failing to accord the latitude Strickland mandates or disregarding the structure dictated by AEDPA could lead prosecutors to forgo plea bargains that would benefit defendants, a result favorable to no one. Whether before, during, or after trial, when the Sixth Amendment applies, the formulation of the standard is the same: reasonable competence in representing the accused. Strickland, 466 U. S., at 688. In applying and defining this standard substantial deference must be accorded to counsel's judgment. Id., at 689. But at different stages of the case that deference may be measured in different ways. In the case of an early plea, neither the prosecution nor the defense may know with much certainty what course the case may take. It follows that each side, of necessity, risks consequences that may arise from contingencies or circumstances yet unperceived. The absence of a developed or an extensive record and the circumstance that neither the prosecution nor the defense case has been well defined create a particular risk that an after-the-fact assessment will run counter to the deference that must be accorded counsel's judgment and perspective when the plea was negotiated, offered, and entered. Prosecutors in the present case faced the cost of litigation and the risk of trying their case without Moore's confession to the police. Moore's counsel could reasonably believe that a swift plea bargain would allow Moore to take advantage of the State's aversion to these hazards. And whenever cases involve multiple defendants, there is a chance that prosecutors might convince one defendant to testify against another in exchange for a better deal. Moore's plea eliminated that possibility and ended an ongoing investigation. Delaying the plea for further proceedings would have given the State time to uncover additional incriminating evidence that could have formed the basis of a capital prosecution. It must be remem-bered, after all, that Moore's claim that it was an accident when he shot the victim through the temple might be disbelieved. It is not clear how the successful exclusion of the confession would have affected counsel's strategic calculus. The prosecution had at its disposal two witnesses able to relate another confession. True, Moore's brother and the girlfriend of his accomplice might have changed their accounts in a manner favorable to Moore. But the record before the state court reveals no reason to believe that either witness would violate the legal obligation to convey the content of Moore's confession. And to the extent that his accomplice's girlfriend had an ongoing interest in the matter, she might have been tempted to put more blame, not less, on Moore. Then, too, the accomplices themselves might have decided to implicate Moore to a greater extent than his own confession did, say by indicating that Moore shot the victim deliberately, not accidentally. All these possibilities are speculative. What counsel knew at the time was that the existence of the two witnesses to an additional confession posed a serious strategic concern. Moore's prospects at trial were thus anything but certain. Even now, he does not deny any involvement in the kidnaping and killing. In these circumstances, and with a potential capital charge lurking, Moore's counsel made a reasonable choice to opt for a quick plea bargain. At the very least, the state court would not have been unreasonable to so conclude. Cf. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) (explaining that state courts enjoy "more leeway" under AEDPA in applying general standards). The Court of Appeals' contrary holding rests on a case that did not involve ineffective assistance of counsel: Arizona v. Fulminante, 499 U. S. 279 (1991). To reach that result, it transposed that case into a novel context; and novelty alone — at least insofar as it renders the relevant rule less than "clearly established"--provides a reason to reject it under AEDPA. See Yarborough, supra, at 666 ("Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law ...[, although c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt"). And the transposition is improper even on its own terms. According to the Court of Appeals, "Fulminante stands for the proposition that the admission of an additional confession ordinarily reinforces and corroborates the others and is therefore prejudicial." 574 F. 3d, at 1111. Based on that reading, the Court of Appeals held that the state court's decision "was contrary to Fulminante." Id., at 1102. But Fulminante may not be so incorporated into the Strickland performance inquiry. A state-court adjudication of the performance of counsel under the Sixth Amendment cannot be "contrary to" Fulminante, for Fulminante — which involved the admission of an involuntary confession in violation of the Fifth Amendment — says nothing about the Strickland standard of effectiveness. See Bell v. Cone, 535 U. S. 685, 694 (2002) ("A federal habeas court may issue the writ under the 'contrary to' clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts"). The Fulminante prejudice inquiry presumes a constitutional violation, whereas Strickland seeks to define one. The state court accepted counsel's view that seeking to suppress Moore's second confession would have been "fruitless." It would not have been unreasonable to conclude that counsel could incorporate that view into his assessment of a plea offer, a subject with which Fulminante is in no way concerned. A finding of constitutionally adequate performance under Strickland cannot be contrary to Fulminante. The state court likely reached the correct result under Strickland. And under §2254(d), that it reached a reasonable one is sufficient. See Richter, ante, at 19.B The Court of Appeals further concluded that it would have been unreasonable for the state postconviction court to have found no prejudice in counsel's failure to suppress Moore's confession to police. To prevail on prejudice before the state court Moore had to demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U. S. 52, 59 (1985). Deference to the state court's prejudice determination is all the more significant in light of the uncertainty inherent in plea negotiations described above: The stakes for defendants are high, and many elect to limit risk by forgoing the right to assert their innocence. A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence. The state court here reasonably could have determined that Moore would have accepted the plea agreement even if his second confession had been ruled inadmissible. By the time the plea agreement cut short investigation of Moore's crimes, the State's case was already formidable and included two witnesses to an admissible confession. Had the prosecution continued to investigate, its case might well have become stronger. At the same time, Moore faced grave punishments. His decision to plead no contest allowed him to avoid a possible sentence of life without parole or death. The bargain counsel struck was thus a favorable one — the statutory minimum for the charged offense — and the decision to forgo a challenge to the confession may have been essential to securing that agreement. Once again the Court of Appeals reached a contrary conclusion by pointing to Fulminante: "The state court's finding that a motion to suppress a recorded confession to the police would have been 'fruitless' ... was without question contrary to clearly established federal law as set forth in Fulminante." 574 F. 3d, at 1112. And again there is no sense in which the state court's finding could be contrary to Fulminante, for Fulminante says nothing about prejudice for Strickland purposes, nor does it contemplate prejudice in the plea bargain context. The Court of Appeals appears to have treated Fulminante as a per se rule of prejudice, or something close to it, in all cases involving suppressible confessions. It is not. In Fulminante five Justices made the uncontroversial observation that many confessions are powerful evidence. See, e.g., 499 U. S., at 296. Fulminante's prejudice analysis arose on direct review following an acknowledged constitutional error at trial. The State therefore had the burden of showing that it was "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." Neder v. United States, 527 U. S. 1, 18 (1999) (paraphrasing Fulminante, supra). That standard cannot apply to determinations of whether inadequate assistance of counsel prejudiced a defendant who entered into a plea agreement. Many defendants reasonably enter plea agreements even though there is a significant probability — much more than a reasonable doubt — that they would be acquitted if they proceeded to trial. Thus, the question in the present case is not whether Moore was sure beyond a reasonable doubt that he would still be convicted if the extra confession were suppressed. It is whether Moore established the reasonable probability that he would not have entered his plea but for his counsel's deficiency, Hill, supra, at 59, and more to the point, whether a state court's decision to the contrary would be unreasonable. To the extent Fulminante's application of the harmless-error standard sheds any light on the present case, it suggests that the state court's prejudice determination was reasonable. Fulminante found that an improperly admitted confession was not harmless under Chapman v. California, 386 U. S. 18 (1967) because the remaining evidence against the defendant was weak. The additional evidence consisted primarily of a second confession that Fulminante had made to the informant's fiancée. But many of its details were not corroborated, the fiancée had not reported the confession for a long period of time, the State had indicated that both confessions were essential to its case, and the fiancée potentially "had a motive to lie." 499 U. S., at 300. Moore's plea agreement, by contrast, ended the government's investigation well before trial, yet the evidence against Moore was strong. The accounts of Moore's second confession to his brother and his accomplice's girlfriend corroborated each other, were given to people without apparent reason to lie, and were reported without delay. The State gave no indication that its felony-murder prosecution depended on the admission of the police confession, and Moore does not now deny that he kidnaped and killed Rogers. Given all this, an unconstitutional admission of Moore's confession to police might well have been found harmless even on direct review if Moore had gone to trial after the denial of a suppression motion. Other than for its discussion of the basic proposition that a confession is often powerful evidence, Fulminante is not relevant to the present case. The state postconviction court reasonably could have concluded that Moore was not prejudiced by counsel's actions. Under AEDPA, that finding ends federal review. See Richter, ante, at 19. Judge Berzon's concurring opinion in the Court of Appeals does not provide a basis for issuance of the writ. The concurring opinion would have found the state court's prejudice determination unreasonable in light of Kimmelman. It relied on Kimmelman to find that Moore suffered prejudice for Strickland purposes because there was a reasonable possibility that he would have obtained a better plea agreement but for his counsel's errors. But Kimmelman concerned a conviction following a bench trial, so it did not establish, much less clearly establish, the appropriate standard for prejudice in cases involving plea bargains. See 477 U. S., at 389. That standard was established in Hill, which held that a defendant who enters a plea agreement must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 474 U. S., at 59. Moore's failure to make that showing forecloses relief under AEDPA.IV There are certain differences between inadequate assistance of counsel claims in cases where there was a full trial on the merits and those, like this one, where a plea was entered even before the prosecution decided upon all of the charges. A trial provides the full written record and factual background that serve to limit and clarify some of the choices counsel made. Still, hindsight cannot suffice for relief when counsel's choices were reasonable and legitimate based on predictions of how the trial would proceed. See Richter, ante, at 18. Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial or, as in this case, even before the prosecution decided on the charges. The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance. The plea process brings to the criminal justice system a stability and a certainty that must not be undermined by the prospect of collateral challenges in cases not only where witnesses and evidence have disappeared, but also in cases where witnesses and evidence were not presented in the first place. The substantial burden to show ineffective assistance of counsel, the burden the claimant must meet to avoid the plea, has not been met in this case. The state postconviction court's decision involved no unreasonable application of Supreme Court precedent. Because the Court of Appeals erred in finding otherwise, its judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Kagan took no part in the consideration or decision of this case.JEFF PREMO, SUPERINTENDENT, OREGON STATE PENITENTIARY, PETITIONER v. RANDY JOSEPH MOOREon writ of certiorari to the united states court of appeals for the ninth circuit[January 19, 2011] Justice Ginsburg, concurring in the judgment. To prevail under the prejudice requirement of Strickland v. Washington, 466 U. S. 668, 694 (1984), a petitioner for federal habeas corpus relief must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," Hill v. Lockhart, 474 U. S. 52, 59 (1985). As Moore's counsel confirmed at oral argument, see Tr. of Oral Arg. 32, Moore never declared that, better informed, he would have resisted the plea bargain and opted for trial. For that reason, I concur in the Court's judgment. |
6 | Petitioner employer and respondent Union are parties to a collective-bargaining agreement covering telephone equipment installation workers. Article 8 of the agreement provides for arbitration of differences arising over interpretation of the agreement. Article 9 provides that subject to certain limitations, but otherwise not subject to the arbitration clause, petitioner is free to exercise certain management functions, including the hiring, placement, and termination of employees. Article 20 prescribes the order in which employees will be laid off "[w]hen lack of work necessitates Layoff." The Union filed a grievance challenging petitioner's decision to lay off 79 installers from its Chicago location, claiming that there was no lack of work at that location and that therefore the layoffs would violate Article 20. But petitioner laid off the installers and refused to submit the grievance to arbitration on the ground that under Article 9 the layoffs were not arbitrable. The Union then sought to compel arbitration by filing suit in Federal District Court, which, after finding that the Union's interpretation of Article 20 was at least "arguable," held that it was for the arbitrator, not the court, to decide whether that interpretation had merit, and, accordingly, ordered petitioner to arbitrate. The Court of Appeals affirmed.Held: The issue whether, because of express exclusion or other evidence, the dispute over interpretation of Article 20 was subject to the arbitration clause, should have been decided by the District Court and reviewed by the Court of Appeals, and should not have been referred to the arbitrator. Pp. 648-657. (a) Under the principles set forth in the Steelworkers Trilogy (Steelworkers v. American Mfg. Co., ; Steelworkers v. Warrior & Gulf Navigation Co., ; and Steelworkers v. Enterprise Wheel & Car Corp., ), it was the District Court's duty to interpret the collective-bargaining agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by petitioner. If the court should determine that the agreement so provides, then it would be for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement. Pp. 648-651. (b) This Court will not examine the collective-bargaining agreement for itself and affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs. It is not this Court's function in the first instance to construe collective-bargaining agreements and arbitration clauses, or to consider any other evidence that might demonstrate that a particular grievance was not subject to arbitration. Pp. 651-652. 751 F.2d 203, vacated and remanded.WHITE, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which BURGER, C. J., and MARSHALL, J., joined, post, p. 652.Rex E. Lee argued the cause for petitioner. With him on the briefs were David W. Carpenter, Gerald D. Skoning, Charles C. Jackson, Howard J. Trienens, Alfred A. Green, and Joseph Ramirez.Laurence Gold argued the cause for respondents. With him on the brief were Irving M. Friedman, Stanley Eisenstein, Harold A. Katz, David Silberman, and James Coppess.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by John S. Irving, Carl L. Taylor, and Stephen A. Bokat; and for the National Association of Manufacturers by Jan S. Admundson and Gary D. Lipkin.David E. Feller filed a brief for the National Academy of Arbitrators as amicus curiae urging affirmance.JUSTICE WHITE delivered the opinion of the Court.The issue presented in this case is whether a court asked to order arbitration of a grievance filed under a collective-bargaining agreement must first determine that the parties intended to arbitrate the dispute, or whether that determination is properly left to the arbitrator.IAT&T Technologies, Inc. (AT&T or the Company), and the Communications Workers of America (the Union) are parties to a collective-bargaining agreement which covers telephone equipment installation workers. Article 8 of this agreement establishes that "differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder" must be referred to a mutually agreeable arbitrator upon the written demand of either party. This Article expressly does not cover disputes "excluded from arbitration by other provisions of this contract."1 Article 9 provides that, "subject to the limitations contained in the provisions of this contract, but otherwise not subject to the provisions of the arbitration clause," AT&T is free to exercise certain management functions, including the hiring and placement of employees and the termination of employment.2 "When lack of work necessitates Layoff," Article 20 prescribes the order in which employees are to be laid off.3 On September 17, 1981, the Union filed a grievance challenging AT&T's decision to lay off 79 installers from its Chicago base location. The Union claimed that, because there was no lack of work at the Chicago location, the planned layoffs would violate Article 20 of the agreement. Eight days later, however, AT&T laid off all 79 workers, and soon thereafter, the Company transferred approximately the same number of installers from base locations in Indiana and Wisconsin to the Chicago base. AT&T refused to submit the grievance to arbitration on the ground that under Article 9 the Company's decision to lay off workers when it determines that a lack of work exists in a facility is not arbitrable.The Union then sought to compel arbitration by filing suit in federal court pursuant to 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a).4 Communications Workers of America v. Western Electric Co., No. 82 C 772 (ND Ill., Nov. 18, 1983). Ruling on cross-motions for summary judgment, the District Court reviewed the provisions of Articles 8, 9, and 20, and set forth the parties' arguments as follows:"Plaintiffs interpret Article 20 to require that there be an actual lack of work prior to employee layoffs and argue that there was no such lack of work in this case. Under plaintiffs' interpretation, Article 20 would allow the union to take to arbitration the threshold issue of whether the layoffs were justified by a lack of work. Defendant interprets Article 20 as merely providing a sequence for any layoffs which management, in its exclusive judgment, determines are necessary. Under defendant's interpretation, Article 20 would not allow for an arbitrator to decide whether the layoffs were warranted by a lack of work but only whether the company followed the proper order in laying off the employees." App. to Pet. for Cert. 10A. Finding that "the union's interpretation of Article 20 was at least `arguable,'" the court held that it was "for the arbitrator, not the court to decide whether the union's interpretation has merit," and accordingly, ordered the Company to arbitrate. Id., at 11A.The Court of Appeals for the Seventh Circuit affirmed. Communications Workers of America v. Western Electric Co., 751 F.2d 203 (1984). The Court of Appeals understood the District Court to have ordered arbitration of the threshold issue of arbitrability. Id., at 205, n. 4. The court acknowledged the "general rule" that the issue of arbitrability is for the courts to decide unless the parties stipulate otherwise, but noted that this Court's decisions in Steelworkers v. Warrior & Gulf Navigation Co., , and Steelworkers v. American Mfg. Co., , caution courts to avoid becoming entangled in the merits of a labor dispute under the guise of deciding arbitrability. From this observation, the court announced an "exception" to the general rule, under which "a court should compel arbitration of the arbitrability issue where the collective bargaining agreement contains a standard arbitration clause, the parties have not clearly excluded the arbitrability issue from arbitration, and deciding the issue would entangle the court in interpretation of substantive provisions of the collective bargaining agreement and thereby involve consideration of the merits of the dispute." 751 F.2d, at 206.All of these factors were present in this case. Article 8 was a "standard arbitration clause," and there was "no clear, unambiguous exclusion from arbitration of terminations predicated by a lack of work determination." Id., at 206-207. Moreover, although there were "colorable arguments" on both sides of the exclusion issue, if the court were to decide this question it would have to interpret not only Article 8, but Articles 9 and 20 as well, both of which are "substantive provisions of the Agreement." The court thus "decline[d] the invitation to decide arbitrability," and ordered AT&T "to arbitrate the arbitrability issue." Id., at 207.The court admitted that its exception was "difficult to reconcile with the Supreme Court's discussion of a court's duty to decide arbitrability in [John Wiley & Sons, Inc. v. Livingston, ." The court asserted, however, that the discussion was "dicta," and that this Court had reopened the issue in Nolde Brothers, Inc. v. Bakery Workers, , n. 8 (1977). 751 F.2d, at 206.We granted certiorari, , and now vacate the Seventh Circuit's decision and remand for a determination of whether the Company is required to arbitrate the Union's grievance.IIThe principles necessary to decide this case are not new. They were set out by this Court over 25 years ago in a series of cases known as the Steelworkers Trilogy: Steelworkers v. American Mfg. Co., supra; Steelworkers v. Warrior & Gulf Navigation Co., supra; and Steelworkers v. Enterprise Wheel & Car Corp., . These precepts have served the industrial relations community well, and have led to continued reliance on arbitration, rather than strikes or lockouts, as the preferred method of resolving disputes arising during the term of a collective-bargaining agreement. We see no reason either to question their continuing validity, or to eviscerate their meaning by creating an exception to their general applicability.The first principle gleaned from the Trilogy is that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Warrior & Gulf, supra, at 582; American Mfg. Co., supra, at 570-571 (BRENNAN, J., concurring). This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration. Gateway Coal Co. v. Mine Workers, .The second rule, which follows inexorably from the first, is that the question of arbitrability - whether a collective-bargaining agreement creates a duty for the parties to arbitrate the particular grievance - is undeniably an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. Warrior & Gulf, supra, at 582-583. See Operating Engineers v. Flair Builders, Inc., ; Atkinson v. Sinclair Refining Co., , overruled in part on other grounds, Boys Markets, Inc. v. Retail Clerks, . Accord, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., .The Court expressly reaffirmed this principle in John Wiley & Sons, Inc. v. Livingston, . The "threshold question" there was whether the court or an arbitrator should decide if arbitration provisions in a collective-bargaining contract survived a corporate merger so as to bind the surviving corporation. Id., at 546. The Court answered that there was "no doubt" that this question was for the courts. "Under our decisions, whether or not the company was bound to arbitrate, as well as what issues it must arbitrate, is a matter to be determined by the Court on the basis of the contract entered into by the parties.' ... The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty." Id., at 546-547 (citations omitted).The third principle derived from our prior cases is that, in deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims. Whether "arguable" or not, indeed even if it appears to the court to be frivolous, the union's claim that the employer has violated the collective-bargaining agreement is to be decided, not by the court asked to order arbitration, but as the parties have agreed, by the arbitrator. "The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious." American Mfg. Co., 363 U.S., at 568 (footnote omitted).Finally, it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that "[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." Warrior & Gulf, 363 U.S., at 582-583. See also Gateway Coal Co. v. Mine Workers, supra, at 377-378. Such a presumption is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of "any differences arising with respect to the interpretation of this contract or the performance of any obligation hereunder ... ." In such cases, "[i]n the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Warrior & Gulf, supra, at 584-585.This presumption of arbitrability for labor disputes recognizes the greater institutional competence of arbitrators in interpreting collective-bargaining agreements, "furthers the national labor policy of peaceful resolution of labor disputes and thus best accords with the parties' presumed objectives in pursuing collective bargaining." Schneider Moving & Storage Co. v. Robbins, (citation omitted). See Gateway Coal Co., supra, at 378-379. The willingness of parties to enter into agreements that provide for arbitration of specified disputes would be "drastically reduced," however, if a labor arbitrator had the "power to determine his own jurisdiction ... ." Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1509 (1959). Were this the applicable rule, an arbitrator would not be constrained to resolve only those disputes that the parties have agreed in advance to settle by arbitration, but, instead, would be empowered "to impose obligations outside the contract limited only by his understanding and conscience." Ibid. This result undercuts the longstanding federal policy of promoting industrial harmony through the use of collective-bargaining agreements, and is antithetical to the function of a collective-bargaining agreement as setting out the rights and duties of the parties.With these principles in mind, it is evident that the Seventh Circuit erred in ordering the parties to arbitrate the arbitrability question. It is the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning layoffs predicated on a "lack of work" determination by the Company. If the court determines that the agreement so provides, then it is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement. It was for the court, not the arbitrator, to decide in the first instance whether the dispute was to be resolved through arbitration.The Union does not contest the application of these principles to the present case. Instead, it urges the Court to examine the specific provisions of the agreement for itself and to affirm the Court of Appeals on the ground that the parties had agreed to arbitrate the dispute over the layoffs at issue here. But it is usually not our function in the first instance to construe collective-bargaining contracts and arbitration clauses, or to consider any other evidence that might unmistakably demonstrate that a particular grievance was not to be subject to arbitration. The issue in the case is whether, because of express exclusion or other forceful evidence, the dispute over the interpretation of Article 20 of the contract, the layoff provision, is not subject to the arbitration clause. That issue should have been decided by the District Court and reviewed by the Court of Appeals; it should not have been referred to the arbitrator.The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings in conformity with this opinion. It is so ordered. |
7 | Respondent Discon, Inc., sold "removal services"--i.e., the removal of obsolete telephone equipment — through petitioner Materiel Enterprises Company, a subsidiary of petitioner NYNEX Corporation, for the use of petitioner New York Telephone Company, another NYNEX subsidiary. After Materiel Enterprises began buying such services from AT&T Technologies, rather than from Discon, Discon filed this suit, alleging that petitioners and others had engaged in unfair, improper, and anticompetitive activities. The District Court dismissed the complaint for failure to state a claim. The Second Circuit affirmed with an exception, holding that certain of Discon's allegations — that Materiel Enterprises paid AT&T Technologies more than Discon would have charged because it could pass the higher prices on to New York Telephone, which could then pass them on to telephone consumers through higher regulatory-agency-approved service charges; that Materiel Enterprises would receive a year-end rebate from AT&T Technologies and share it with NYNEX; that Materiel Enterprises would not buy from Discon because it refused to participate in this fraudulent scheme; and that Discon therefore went out of business — stated a claim under §1 of the Sherman Act. Noting that the ordinary procompetitive rationale for discriminating in favor of one supplier over another was lacking in this case, and that, in fact, the complaint alleged that Materiel Enterprises' buying decision was anticompetitive, the court held that Discon may have alleged a cause of action under, inter alia, the antitrust rule set forth in Klor's, Inc. v. Broadway-Hale Stores, Inc.,359 U. S. 207, 212, that group boycotts are illegal per se. For somewhat similar reasons the court believed the complaint stated a valid conspiracy to monopolize claim under §2 of the Act. Held: The per se group boycott rule does not apply to a single buyer's decision to buy from one seller rather than another. Pp. 4-11. (a) Precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors. See, e.g.,Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 734. The per se rule is inapplicable here because this case concerns only a vertical agreement and a vertical restraint, in the form of depriving a supplier of a potential customer. Nor is there a special feature that could distinguish this case from such precedent. Although petitioners' behavior hurt consumers by raising telephone service rates, that consumer injury naturally flowed not so much from a less competitive market for removal services, as from the exercise of market power lawfully in the hands of a monopolist, New York Telephone, combined with a deception worked upon the regulatory agency that prevented the agency from controlling the exercise of monopoly power. Applying the per se rule here would transform cases involving business behavior that is improper for various reasons into treble-damages antitrust cases and would discourage firms from changing suppliers — even where the competitive process itself does not suffer harm. Moreover, special anticompetitive motive cannot be found in Discon's claim that Materiel Enterprises hoped to drive Discon from the market lest Discon reveal its behavior to New York Telephone or to the relevant regulatory agency. That motive does not turn Materiel Enterprises' actions into a "boycott" under this Court's precedents, and Discon's reasons why the motive's presence should lead to the application of the per se rule are unconvincing. Finally, Discon's allegations that New York Telephone (through Materiel Enterprises) was the largest buyer of removal services in the State, and that only AT&T Technologies competed for New York Telephone's business, are not sufficient to warrant application of a per se presumption of consequent harm to the competitive process itself, absent a horizontal agreement. Discon's complaint suggests that other actual or potential competitors might have provided roughly similar checks upon "equipment removal" prices and services with or without Discon, which argues against the likelihood of anticompetitive harm. Pp.4-10. (b) Unless petitioners' purchasing practices harmed the competitive process, they did not amount to a conspiracy to monopolize in violation of §2, and Discon cannot succeed on this claim without prevailing on its §1 claim. Pp. 10-11. (c) Petitioners' argument that Discon's complaint should be dismissed because it fails to allege that petitioners' purchasing decisions harmed the competitive process itself lies outside the questions presented for certiorari, which were limited to the application of the per se rule, and cannot be raised in this Court. P. 11.93 F. 3d 1055, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court. NYNEX CORPORATION, et al., PETITIONERS v.DISCON, INCORPORATEDon writ of certiorari to the united states court ofappeals for the second circuit[December 14, 1998] Justice Breyer delivered the opinion of the Court. In this case we ask whether the antitrust rule that group boycotts are illegal per se as set forth in Klor's, Inc. v. Broadway-Hale Stores, Inc.,359 U. S. 207, 212 (1959), applies to a buyer's decision to buy from one seller rather than another, when that decision cannot be justified in terms of ordinary competitive objectives. We hold that the per se group boycott rule does not apply.I Before 1984 American Telephone and Telegraph Company (AT&T) supplied most of the Nation's telephone service and, through wholly owned subsidiaries such as Western Electric, it also supplied much of the Nation's telephone equipment. In 1984 an antitrust consent decree took AT&T out of the local telephone service business and left AT&T a long-distance telephone service provider, competing with such firms as MCI and Sprint. See M. Kellogg, J. Thorne, & P. Huber, Federal Telecommunications Law §4.6, p. 221 (1992). The decree transformed AT&T's formerly owned local telephone companies into independent firms. At the same time, the decree insisted that those local firms help assure competitive long-distance service by guaranteeing long-distance companies physical access to their systems and to their local customers. See United States v. American Telephone & Telegraph Co., 552 F. Supp. 131, 225, 227 (DC 1982), aff'd sub nom.Maryland v. United States, 460 U. S 1001 (1983). To guarantee that physical access, some local telephone firms had to install new call-switching equipment; and to install new call-switching equipment, they often had to remove old call-switching equipment. This case involves the business of removing that old switching equipment (and other obsolete telephone equipment)--a business called "removal services." Discon, Inc., the respondent, sold removal services used by New York Telephone Company, a firm supplying local telephone service in much of New York State and parts of Connecticut. New York Telephone is a subsidiary of NYNEX Corporation. NYNEX also owns Materiel Enterprises Company, a purchasing entity that bought removal services for New York Telephone. Discon, in a lengthy detailed complaint, alleged that the NYNEX defendants (namely, NYNEX, New York Telephone, Materiel Enterprises, and several NYNEX related individuals) engaged in unfair, improper, and anticompetitive activities in order to hurt Discon and to benefit Discon's removal services competitor, AT&T Technologies, a lineal descendant of Western Electric. The Federal District Court dismissed Discon's complaint for failure to state a claim. The Court of Appeals for the Second Circuit affirmed that dismissal with an exception, and that exception is before us for consideration. The Second Circuit focused on one of Discon's specific claims, a claim that Materiel Enterprises had switched its purchases from Discon to Discon's competitor, AT&T Technologies, as part of an attempt to defraud local telephone service customers by hoodwinking regulators. According to Discon, Materiel Enterprises would pay AT&T Technologies more than Discon would have charged for similar removal services. It did so because it could pass the higher prices on to New York Telephone, which in turn could pass those prices on to telephone consumers in the form of higher regulatory-agency-approved telephone service charges. At the end of the year, Materiel Enterprises would receive a special rebate from AT&T Technologies, which Materiel Enterprises would share with its parent, NYNEX. Discon added that it refused to participate in this fraudulent scheme, with the result that Materiel Enterprises would not buy from Discon, and Discon went out of business. These allegations, the Second Circuit said, state a cause of action under §1 of the Sherman Act, though under a "different legal theory" from the one articulated by Discon. 93 F. 3d 1055, 1060 (1996). The Second Circuit conceded that ordinarily "the decision to discriminate in favor of one supplier over another will have a pro-competitive intent and effect." Id., at 1061. But, it added, in this case, "no such pro-competitive rationale appears on the face of the complaint." Ibid. Rather, the complaint alleges Materiel Enterprises' decision to buy from AT&T Technologies, rather than from Discon, was intended to be, and was, "anti-competitive." Ibid. Hence, "Discon has alleged a cause of action under, at least, the rule of reason, and possibly under the per se rule applied to group boycotts in Klor's, if the restraint of trade ` "has no purpose except stifling competition." ' " Ibid. (quoting Oreck Corp. v. Whirlpool Corp., 579 F. 2d 126, 131 (CA2) (en banc) (in turn quoting White Motor Co. v. United States,372 U. S. 253, 263 (1963)), cert. denied, 439 U. S. 946 (1978)). For somewhat similar reasons the Second Circuit believed the complaint stated a valid claim of conspiracy to monopolize under §2 of the Sherman Act. See 93 F. 3d, at 1061-1062. The Second Circuit noted that the Courts of Appeals are uncertain as to whether, or when, the per se group boycott rule applies to a decision by a purchaser to favor one supplier over another (which the Second Circuit called a "two-firm group boycott"). Compare Com-Tel, Inc. v. DuKane Corp., 669 F. 2d 404, 411-413, and nn. 13, 16 (CA6 1982); Cascade Cabinet Co. v. Western Cabinet & Millwork Inc., 710 F. 2d 1366, 1370-1371 (CA9 1983), with Construction Aggregate Transport, Inc. v. Florida Rock Industries, Inc., 710 F. 2d 752, 776-778 (CA11 1983). We granted certiorari in order to consider the applicability of the per se group boycott rule where a single buyer favors one seller over another, albeit for an improper reason.II As this Court has made clear, the Sherman Act's prohibition of "[e]very" agreement in "restraint of trade," 26 Stat. 209, as amended, 15 U. S. C. §1, prohibits only agreements that unreasonably restrain trade. See Business Electronics Corp. v. Sharp Electronics Corp., 485 U. S. 717, 723 (1988) (citing National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla.,468 U. S. 85, 98 (1984)); Standard Oil Co. of N. J. v. United States,221 U. S. 1, 59-62 (1911); 2 P. Areeda & H. Hovenkamp, Antitrust Law¶ ;320b, p. 49 (1995). Yet certain kinds of agreements will so often prove so harmful to competition and so rarely prove justified that the antitrust laws do not require proof that an agreement of that kind is, in fact, anticompetitive in the particular circumstances. See State Oil Co. v. Khan, 522 U. S. 3, 10 (1997); Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co.,472 U. S. 284, 289-290 (1985); 2 Areeda & Hovenkamp, supra, ¶ ;320b, at 49-52. An agreement of such a kind is unlawful per se. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 218 (1940) (finding horizontal price-fixing agreement per se illegal); Dr. Miles Medical Co. v. John D. Park & Sons Co.,220 U. S. 373, 408 (1911) (finding vertical price-fixing agreement per se illegal); Palmer v. BRG of Ga., Inc.,498 U. S. 46, 49-50 (1990) (per curiam) (finding horizontal market division per se illegal). The Court has found the per se rule applicable in certain group boycott cases. Thus, in Fashion Originators' Guild of America, Inc. v. FTC,312 U. S. 457 (1941), this Court considered a group boycott created by an agreement among a group of clothing designers, manufacturers, suppliers, and retailers. The defendant designers, manufacturers, and suppliers had promised not to sell their clothes to retailers who bought clothes from competing manufacturers and suppliers. The defendants wanted to present evidence that would show their agreement was justified because the boycotted competitors used "pira[ted]" fashion designs. Id., at 467. But the Court wrote that "it was not error to refuse to hear the evidence offered"--evidence that the agreement was reasonable and necessary to "protect ... against the devastating evils" of design pirating — for that evidence "is no more material than would be the reasonableness of the prices fixed" by a price-fixing agreement. Id., at 467-468. In Klor's the Court also applied the per se rule. The Court considered a boycott created when a retail store, Broadway-Hale, and 10 household appliance manufacturers and their distributors agreed that the distributors would not sell, or would sell only at discriminatory prices, household appliances to Broadway-Hale's small, nearby competitor, namely, Klor's. 359 U. S., at 208-209. The defendants had submitted undisputed evidence that their agreement hurt only one competitor (Klor's) and that so many other nearby appliance-selling competitors remained that competition in the marketplace continued to thrive. Id., at 209-210. The Court held that this evidence was beside the point. The conspiracy was "not to be tolerated merely because the victim is just one merchant." Id., at 213. The Court thereby inferred injury to the competitive process itself from the nature of the boycott agreement. And it forbade, as a matter of law, a defense based upon a claim that only one small firm, not competition itself, had suffered injury. The case before us involves Klor's. The Second Circuit did not forbid the defendants to introduce evidence of "justification." To the contrary, it invited the defendants to do so, for it said that the "per se rule" would apply only if no "pro-competitive justification" were to be found. 93 F. 3d, at 1061; cf. 7 P. Areeda & H. Hovenkamp, Antitrust Law ¶ ;1510, p. 416 (1986) ("Boycotts are said to be unlawful per se but justifications are routinely considered in defining the forbidden category"). Thus, the specific legal question before us is whether an antitrust court considering an agreement by a buyer to purchase goods or services from one supplier rather than another should (after examining the buyer's reasons or justifications) apply the per se rule if it finds no legitimate business reason for that purchasing decision. We conclude no boycott-related per se rule applies and that the plaintiff here must allege and prove harm, not just to a single competitor, but to the competitive process, i.e., to competition itself. Our conclusion rests in large part upon precedent, for precedent limits the per se rule in the boycott context to cases involving horizontal agreements among direct competitors. The agreement in Fashion Originators' Guild involved what may be called a group boycott in the strongest sense: A group of competitors threatened to withhold business from third parties unless those third parties would help them injure their directly competing rivals. Although Klor's involved a threat made by a single powerful firm, it also involved a horizontal agreement among those threatened, namely, the appliance suppliers, to hurt a competitor of the retailer who made the threat. See 359 U. S., at 208-209; see also P. Areeda & L. Kaplow, Antitrust Analysis:Problems, Text, and Cases 333 (5th ed. 1997) (defining paradigmatic boycott as "collective action among a group of competitors that may inhibit the competitive vitality of rivals"); 11 H. Hovenkamp, Antitrust Law ¶ ;1901e, pp. 189-190 (1998). This Court emphasized in Klor's that the agreement at issue was "not a case of a single trader refusing to deal with another, nor even of a manufacturer and a dealer agreeing to an exclusive distributorship. Alleged in this complaint is a wide combination consisting of manufacturers, distributors and a retailer." 359 U. S., at 212-213 (footnote omitted). This Court subsequently pointed out specifically that Klor's was a case involving not simply a "vertical" agreement between supplier and customer, but a case that also involved a "horizontal" agreement among competitors. See Business Electronics, 485 U. S., at 734. And in doing so, the Court held that a "vertical restraint is not illegal per se unless it includes some agreement on price or price levels." Id., at 735-736. This precedent makes the per se rule inapplicable, for the case before us concerns only a vertical agreement and a vertical restraint, a restraint that takes the form of depriving a supplier of a potential customer. See 11 Hovenkamp, supra,¶ ;1902d, at 198. Nor have we found any special feature of this case that could distinguish it from the precedent we have just discussed. We concede Discon's claim that the petitioners' behavior hurt consumers by raising telephone service rates. But that consumer injury naturally flowed not so much from a less competitive market for removal services, as from the exercise of market power that is lawfully in the hands of a monopolist, namely, New York Telephone, combined with a deception worked upon the regulatory agency that prevented the agency from controlling New York Telephone's exercise of its monopoly power. To apply the per se rule here — where the buyer's decision, though not made for competitive reasons, composes part of a regulatory fraud — would transform cases involving business behavior that is improper for various reasons, say, cases involving nepotism or personal pique, into treble-damages antitrust cases. And that per se rule would discourage firms from changing suppliers — even where the competitive process itself does not suffer harm. Cf. Poller v. Columbia Broadcasting System, Inc.,368 U. S. 464, 484 (1962) (Harlan, J., dissenting) (citing Packard Motor Car Co. v. Webster Motor Car Co., 243 F. 2d 418, 421 (CADC 1957)). The freedom to switch suppliers lies close to the heart of the competitive process that the antitrust laws seek to encourage. Cf. Standard Oil, 221 U. S., at 62 (noting "the freedom of the individual right to contract when not unduly or improperly exercised [is] the most efficient means for the prevention of monopoly"). At the same time, other laws, for example, "unfair competition" laws, business tort laws, or regulatory laws, provide remedies for various "competitive practices thought to be offensive to proper standards of business morality." 3 P. Areeda & H. Hovenkamp, Antitrust Law ¶ ;651d, p. 78 (1996). Thus, this Court has refused to apply per se reasoning in cases involving that kind of activity. See Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,509 U. S. 209, 225 (1993) ("Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws"); 3 Areeda & Hovenkamp, supra, ¶ ;651d, at 80 ("[I]n the presence of substantial market power, some kinds of tortious behavior could anticompetitively create or sustain a monopoly, [but] it is wrong categorically to condemn such practices ... or categorically to excuse them"). Discon points to another special feature of its complaint, namely, its claim that Materiel Enterprises hoped to drive Discon from the market lest Discon reveal its behavior to New York Telephone or to the relevant regulatory agency. That hope, says Discon, amounts to a special anticompetitive motive. We do not see how the presence of this special motive, however, could make a significant difference. That motive does not turn Materiel Enterprises' actions into a "boycott" within the meaning of this Court's precedents. See supra, at 6-7. Nor, for that matter, do we understand how Discon believes the motive affected Materiel Enterprises' behavior. Why would Discon's demise have made Discon's employees less likely, rather than more likely, to report the overcharge/rebate scheme to telephone regulators? Regardless, a per se rule that would turn upon a showing that a defendant not only knew about but also hoped for a firm's demise would create a legal distinction — between corporate knowledge and corporate motive — that does not necessarily correspond to behavioral differences and which would be difficult to prove, making the resolution of already complex antitrust cases yet more difficult. We cannot find a convincing reason why the presence of this special motive should lead to the application of the per se rule. Finally, we shall consider an argument that is related tangentially to Discon's per se claims. The complaint alleges that New York Telephone (through Materiel Enterprises) was the largest buyer of removal services in New York State, see Amended Complaint, ¶ ;¶ ;2, 29, 99, App. 75, 83, 110, and that only AT&T Technologies competed for New York Telephone's business, see ¶ ;¶ ;2, 26, 29, id., at 75, 82-83. One might ask whether these accompanying allegations are sufficient to warrant application of a Klor's-type presumption of consequent harm to the competitive process itself. We believe that these allegations do not do so, for, as we have said, see supra, at 6-7, antitrust law does not permit the application of the per se rule in the boycott context in the absence of a horizontal agreement. (Though in other contexts, say, vertical price fixing, conduct may fall within the scope of a per se rule not at issue here. See, e.g.,Dr. Miles Medical Co.,220 U. S., at 408.) The complaint itself explains why any such presumption would be particularly inappropriate here, for it suggests the presence of other potential or actual competitors, which fact, in the circumstances, could argue against the likelihood of anticompetitive harm. The complaint says, for example, that New York Telephone itself was a potential competitor in that New York Telephone considered removing its equipment by itself, and in fact did perform a few jobs itself. See ¶ ;27, App. 83. The complaint also suggests that other nearby small local telephone companies needing removal services must have worked out some way to supply them. See ¶ ;53, id., at 91. The complaint's description of the removal business suggests that entry was easy, perhaps to the point where other firms, employing workers who knew how to remove a switch and sell it for scrap, might have entered that business almost at will. Cf. ¶ ;27, id., at 83. To that extent, the complaint suggests other actual or potential competitors might have provided roughly similar checks upon "equipment removal" prices and services with or without Discon. At the least, the complaint provides no sound basis for assuming the contrary. Its simple allegation of harm to Discon does not automatically show injury to competition.III The Court of Appeals also upheld the complaint's charge of a conspiracy to monopolize in violation of §2 of the Sherman Act. It did so, however, on the understanding that the conspiracy in question consisted of the very same purchasing practices that we have previously discussed. Unless those agreements harmed the competitive process, they did not amount to a conspiracy to monopolize. We do not see, on the basis of the facts alleged, how Discon could succeed on this claim without prevailing on its §1 claim. See 3 Areeda & Hovenkamp, supra, ¶ ;651e, at 81-82. Given our conclusion that Discon has not alleged a §1 per se violation, we think it prudent to vacate this portion of the Court of Appeals' decision and allow the court to reconsider its finding of a §2 claim.IV Petitioners ask us to reach beyond the "per se" issues and to hold that Discon's complaint does not allege anywhere that their purchasing decisions harmed the competitive process itself and, for this reason, it should be dismissed. They note that Discon has not pointed to any paragraph of the complaint that alleges harm to the competitive process. This matter, however, lies outside the questions presented for certiorari. Those questions were limited to the application of the per se rule. For that reason, we believe petitioners cannot raise that argument in this Court.V For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. |
7 | Section 161(v) of the Atomic Energy Act of 1954 authorizes the Department of Energy (DOE) to offer its services, for a fee, to convert natural uranium into the enriched uranium used for fuel in commercial reactors, and provides that DOE "shall" restrict its enrichment of foreign-source uranium intended for use in domestic facilities "to the extent necessary to assure the maintenance of a viable domestic uranium industry." DOE has determined that the domestic uranium industry has not been "viable" since 1983, and that the imposition of restrictions on DOE's enrichment of foreign uranium would not assure viability. Respondent domestic uranium mining and milling companies filed suit against petitioners (DOE and some of its officers and employees) in Federal District Court, alleging that DOE's failure to impose restrictions on the enrichment of foreign uranium for use in domestic facilities constituted a violation of 161(v). Respondents moved for summary judgment based on this claim, arguing that two facts - that the domestic industry was not viable and that DOE imposed no restrictions on enrichment of foreign uranium - established their entitlement to judgment as a matter of law under 161(v). Petitioners filed a cross-motion for summary judgment, contending that 161(v) did not require restrictions when those restrictions would not serve the statutory goal of assuring the maintenance of a viable domestic industry. The court entered summary judgment for respondents, holding that the statute gave DOE no discretion to determine not to impose restrictions if the domestic industry was not viable. The Court of Appeals affirmed the judgment in relevant part.Held: Section 161(v) does not require DOE to restrict the enrichment of foreign uranium where such restriction would not achieve the statutory goal of "assur[ing] the maintenance of a viable domestic uranium industry," for the statute ties the amount of restriction to be imposed to the achievement of that goal. Pp. 671-674. 825 F.2d 1430, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court.Deputy Solicitor General Merrill argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Acting Assistant Attorney General Spears, John Harrison, Leonard Schaitman, Richard A. Olderman, Eric J. Fygi, Marc Johnston, and Acting Solicitor General Wallace.Peter J. Nickles argued the cause for respondents. With him on the brief were William H. Allen, Elliott Schulder, Alan A. Pemberton, Harley W. Shaver, and John H. Licht.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Government of Australia by Mark R. Joelson and Joseph P. Griffin; for the Government of Canada by Douglas E. Rosenthal; for Eldorado Nuclear Limited et al. by Robert E. Herzstein; and for Electric Utility Companies by Harry H. Voigt and Paul H. Falon. Briefs of amici curiae urging affirmance were filed for United States Senators Jeff Bingaman et al. by Senator Pete V. Domenici; and for the State of Arizona et al. by Joseph B. Meyer, Attorney General of Wyoming, and Mary B. Guthrie, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Duane Woodard of Colorado, Hal Stratton of New Mexico, Brian McKay of Nevada, and David L. Wilkerson of Utah. Charles H. Montange filed a brief for the National Taxpayers Union as amicus curiae.JUSTICE BLACKMUN delivered the opinion of the Court.Section 161(v) of the Atomic Energy Act of 1954, as amended, 78 Stat. 606, 42 U.S.C. 2201(v), provides that the Department of Energy (DOE) shall restrict its enrichment of foreign-source uranium intended for use in domestic facilities "to the extent necessary to assure the maintenance of a viable domestic uranium industry." DOE has determined that the domestic uranium industry has not been "viable"1 since 1983, and that the imposition of restrictions on the enrichment of foreign uranium would not assure viability. In this case we consider whether 161(v) requires DOE to restrict the enrichment of foreign uranium, irrespective of whether such restriction would make the domestic industry viable. We conclude that it does not.IIn 1964, as part of its efforts to move the nuclear-power industry into the private sector, Congress enacted the Private Ownership of Special Nuclear Materials Act (Act), Pub. L. 88-489, 78 Stat. 602, which amended the Atomic Energy Act of 1954 to permit privately owned utilities operating nuclear reactors also to own, for the first time, the uranium used for fuel in their reactors. At the time of the statute's enactment, DOE's predecessor, the Atomic Energy Commission (AEC), was the only entity in the world with the facilities to convert natural uranium into the enriched uranium used for fuel in commercial reactors.2 In 161(v), Congress accounted for this de facto monopoly by authorizing the AEC to offer "toll enrichment" services whereby utilities could obtain unenriched uranium on the open market and have it enriched by the AEC for a fee. It was to protect the uranium mining and milling industry from foreign competition during the period of transition from a Government-controlled market to an open one, that Congress included in 161(v) the requirement that the AEC, in written "criteria," restrict its enrichment of foreign-source uranium for domestic use "to the extent necessary to assure the maintenance of a viable domestic uranium industry."3 The criteria initially established by the AEC provided that it would enrich no foreign-source uranium for domestic use. See 31 Fed. Reg. 16479 (1966). In 1974, expecting an increase in the demand for uranium to match the anticipated expansion in the commercial use of nuclear power, the AEC amended the criteria and provided for the gradual elimination by the end of 1983 of restrictions on its enrichment of foreign-source uranium for domestic use. See 39 Fed. Reg. 38016 (1974). The phase-out took place according to schedule, and DOE, which has replaced AEC for these purposes,4 has not reimposed restrictions on the enrichment of foreign uranium.The early optimistic forecast for the commercial use of nuclear power turned gloomy in the late 1970's and early 1980's, and the economic condition of the domestic uranium industry deteriorated. Cancellations and delays in the construction of nuclear reactors led to a drop in the demand for uranium, which, in turn, brought about a precipitous decline in the price of uranium ore.5 The decline of the domestic uranium industry has also been attributed to other developments in the national and international markets. DOE lost its enrichment monopoly when two European consortia and the Soviet Union began to supply enriched uranium produced from foreign-source ore. See 51 Fed. Reg. 3625 (1986). This allowed foreign uranium suppliers, who offered lower prices, to compete successfully with domestic suppliers for the business of the domestic utilities. Another competitive alternative was the emergence of a secondary market in which domestic utilities, bound by long-term contracts to purchase enrichment services in excess of their needs, sold their enriched uranium to other utilities at substantial discounts. Ibid.In 1983, 170B was added to the Atomic Energy Act of 1954 to improve Congress' ability to monitor the domestic uranium industry's condition. 96 Stat. 2081, 42 U.S.C. 2210b. This new provision required the Secretary of Energy to promulgate criteria for assessing the viability of the industry and to report to the President and the Congress annually on the industry's viability. DOE accordingly issued criteria, still in effect, see 10 CFR pt. 761 (1988), which define viability largely in terms of "the extent to which the domestic mining and milling uranium industry will be capable, at any particular time, of supplying the needs of the domestic nuclear power industry under a variety of hypothetical conditions." 48 Fed. Reg. 45747 (1983). Applying these criteria, DOE reported that the industry was viable in 1983, but that one year later it was no longer viable. See S. Rep. No. 100-214, p. 9 (1987) (noting no change in viability in 1985 and no change in prospect for industry's viability in 1986).Shortly after the Secretary first reported that the industry was not viable, he initiated a rulemaking to consider revising the criteria governing DOE's restriction of enrichment services. 51 Fed. Reg. 3624-3632 (1986). In his notice of proposed rulemaking, the Secretary specifically stated that, despite the depressed condition of the domestic industry, he proposed not to restrict the enrichment of foreign uranium because "[i]mport restrictions on foreign uranium would not assure the viability of the domestic mining and milling industry." Id., at 3627.After receiving extensive comments, the Secretary adopted final revised criteria that again did not include any restrictions on enrichment. See 10 CFR pt. 762 (1988). In response to critical comments from the domestic uranium industry, the Secretary explained: "The plain language of the statute makes clear that restrictions are not to be imposed automatically if the domestic industry is non-viable, but only if they are needed to, and in fact, will assure the maintenance of a viable domestic uranium industry." 51 Fed. Reg. 27134 (1986). Finding that the domestic industry's problems were due to "[s]tructural weaknesses," particularly the collapse in demand and the consequent inability of the market to sustain a price for uranium that enabled the industry to recover its cost of production, the Secretary concluded that restrictions on enrichment would do nothing to cure those ills. Id., at 27135. Moreover, the Secretary found that, because DOE had no market power with respect to the provision of enrichment services, it could not force its enrichment customers to use domestic uranium. Id., at 27138. The Secretary repeated his earlier conclusion that restrictions on enrichment services "would not assure the viability of the domestic mining and milling industry," id., at 27135, and, if anything, would be "counterproductive," because such restrictions would send some customers away, requiring DOE to impose heavier costs on the remaining domestic suppliers. Id., at 27136.Before the Secretary had concluded that the industry was not viable, and before he had initiated this latest rulemaking, respondents, three domestic uranium mining and milling companies, filed suit in the United States District Court for the District of Colorado against DOE and some of its officers and employees, petitioners here.6 Respondents alleged, among other things, that DOE's failure to impose restrictions on the enrichment of foreign uranium for use in domestic facilities constituted a violation of 161(v). App. 10-15. Respondents moved for summary judgment based on this claim,7 arguing that two facts - that the domestic industry was not viable and that DOE imposed no restrictions on enrichment of foreign uranium - sufficed to establish their entitlement to judgment as a matter of law under 161(v). App. 27-28. Accepting respondents' two facts, DOE submitted a cross-motion for summary judgment, arguing that 161(v) did not require restrictions when those restrictions would not serve the statutory goal of assuring the maintenance of a viable domestic industry. App. 39.The District Court entered summary judgment for respondents. App. to Pet. for Cert. 22a. According to the court, the statute gave DOE no discretion to determine not to impose restrictions if the domestic industry was not viable. In view of its determination that immediate injunctive relief was necessary to remedy DOE's "continuing refusal to recognize its obligations under 42 U.S.C. 2201(v)," id., at 22a-23a, the District Court entered an order requiring DOE to limit its enrichment of foreign uranium for domestic use to 25% of all material enriched between June 6 and December 31, 1986; imposing a total ban on enrichment of foreign uranium beginning January 1, 1987, and "continuing until the viability of the domestic uranium industry is assured"; and calling for a rulemaking to be commenced to determine whether "criteria less restrictive than those imposed by this order would assure the maintenance of a viable domestic uranium industry." Id., at 23a.DOE appealed to the United States Court of Appeals for the Tenth Circuit.8 That court affirmed the District Court's judgment in relevant part. 825 F.2d 1430 (1987). The Court of Appeals found the language of 161(v) unambiguous: The term "shall" indicated that the restrictions were mandatory, and the phrase "to the extent necessary to assure the maintenance of a viable domestic uranium industry" indicated that DOE had discretion to "determine how much restriction is required to assure viability, but it cannot decide not to impose restrictions when the industry is not viable." 825 F.2d, at 1439. According to the Court of Appeals, the statute clearly instructs that"when domestic nonviability is determined, restrictions on enrichment of foreign-source uranium must be imposed and must become increasingly aggressive, to the point of 100% restriction, until the domestic industry is rejuvenated and becomes viable." Ibid. At DOE's request, the Court of Appeals stayed its mandate pending this Court's final disposition of DOE's petition for certiorari. App. 4. We granted the writ. .IIWe begin by emphasizing that the question presented here is a narrow one which comes to us as a challenge to the entry of summary judgment. That judgment rests on a legal conclusion drawn from two uncontested facts: that the domestic uranium industry was not viable, and that DOE was imposing no restrictions on the enrichment of foreign-source uranium for use in domestic facilities. On the basis of these facts alone, the courts below determined that DOE was violating the law, for they read 161(v) "to require the DOE to restrict enrichment of foreign uranium whenever the domestic industry is not viable - whether or not such restriction would result in successful resuscitation of the uranium industry." 825 F.2d, at 1437. Therefore, neither DOE's underlying assessment that the industry was not viable, nor its assessment that no amount of restriction would assure the industry's viability, nor, indeed, what it means to "assure the maintenance of a viable ... industry" are before us at this time for review. The only question presented is whether, regardless of the effects restrictions would have on the viability of the domestic industry, DOE must impose restrictions on the enrichment of foreign-source uranium whenever the domestic industry is determined not to be viable.In considering this narrow question of statutory interpretation, we cannot agree with the Court of Appeals' conclusion that the relevant language in 161(v) is unambiguous. While respondents' reading of the statute is not implausible, it is by no means the only reading the language can bear. The statute requires DOE to impose restrictions "to the extent necessary to assure the maintenance of a viable domestic uranium industry." If some amount of restriction would assure a viable domestic industry, there can be no doubt that DOE is required to impose restrictions. The term "shall" makes clear that, in such circumstances, DOE has no discretion to decline to impose restrictions. But whether that mandate applies when restrictions would not assure viability is not directly addressed by the language of the statute. Indeed, we well might infer from the language that the particular issue presented by this case was not the focus of Congress' concern at the time the relevant provision was enacted. We therefore look to Congress' express purpose in imposing restriction requirements to determine whether they apply here.The purpose of the relevant provision could not be articulated more clearly in the statutory language. See United States v. American Trucking Assns., Inc., ("There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes"). Congress imposed restriction obligations on DOE to satisfy a single goal: "to assure the maintenance of a viable domestic uranium industry."Both parties agree that this is the clear purpose behind the provision, but they put it to different uses. Respondents contend that the statute reveals that Congress made a policy determination that imposing restrictions on the enrichment of foreign-source uranium could always assure the viability of the domestic industry and therefore commanded DOE to impose some restrictions whenever the industry's viability was threatened or destroyed. Respondents suggest that DOE's refusal to impose restrictions under the circumstances presented in this case simply reflects DOE's disagreement with Congress' policy judgment. See also 825 F.2d, at 1439 ("DOE's argument that this policy is not wise in the present uranium market should be made to Congress and not to the courts").DOE, in contrast, asserts that the clear congressional purpose defines the proper limit of DOE's obligation: DOE is required to impose restrictions to the extent necessary to serve a particular goal, and if no extent will serve that goal, then DOE does not violate the statute by declining to impose restrictions. Indeed, DOE suggests, to impose restrictions it knew were incapable of serving the statutory goal would, in fact, be to act outside its authority.DOE's reading strikes us as the more natural one.9 While the parties, on remand, can argue over whether DOE properly determined that no amount of restriction would assure viability, and, indeed, what it means to assure viability, it seems strained to assert that, even if DOE properly determined that no amount of restriction would assure the viability of the industry, Congress nevertheless intended DOE to impose restrictions that were somehow calculated to serve that unattainable goal.10 Indeed, it is impossible to ascertain from the statute how DOE would calculate the extent of restriction to be imposed under respondents' interpretation of the statute. The only guidepost DOE has is the amount necessary to assure the viability of the domestic industry. See 825 F.2d, at 1438 (interpreting the phrase "to the extent necessary to assure the maintenance of a viable domestic industry" as "inform[ing] the DOE of the amount of restriction required") (emphasis in original). Where DOE determines that no such amount exists, it is without guidance in setting restrictions. The determination of the courts below that DOE was barred from enriching any foreign-source uranium rests on the assumption that the greater the restrictions, the more assured is the domestic industry's viability. This assumption cannot be grounded in the statutory language and, indeed, for the purpose of this case's summary judgment status, we must accept DOE's assertion that the assumption is false.IIIBecause we conclude that Congress did not intend to force DOE to impose enrichment restrictions where such restrictions would not achieve the statutory goal they were intended to achieve, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.11 It is so ordered. |
1 | The Social Security Act (Act) and implementing regulations provide a four-step process for the administrative review and adjudication of disputed disability benefit claims under Title II of the Act. First, a state agency determines whether the claimant has a disability and the date it began or ceased. Second, if the claimant is dissatisfied with that determination, he may request a de novo reconsideration and in some cases a full evidentiary hearing. Third, if the claimant receives an adverse reconsideration determination, he is entitled to an evidentiary hearing and de novo review by an administrative law judge. Finally, if the claimant is dissatisfied with the administrative law judge's decision, he may appeal to the Appeals Council of the Department of Health and Human Services (HHS). Respondents brought an action in Federal District Court on behalf of a statewide class of claimants in Vermont, seeking declaratory and injunctive relief from delays encountered in steps two and three that allegedly violated their right under 42 U.S.C. 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time. Holding that delays of more than 90 days in making reconsideration determinations, and delays of more than 90 days in granting a hearing request, were unreasonable and violated claimants' statutory rights, the District Court issued an injunction in favor of the statewide class requiring the Secretary of HHS in the future to issue reconsideration determinations within 90 days of requests for reconsideration, to conduct hearings within 90 days of requests for hearings, and to pay interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request. The Court of Appeals affirmed.Held: The District Court's injunction constituted an unwarranted judicial intrusion into the pervasively regulated area of claims adjudication under Title II. The legislative history shows that Congress, in striking the balance between the need for timely disability determinations and the need to ensure the accuracy and consistency of such determinations in the face of heavy workloads and limited agency resources, has concluded that mandatory deadlines for adjudication of disputed disability claims are inconsistent with the Act's primary objectives. In light of Congress' continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, it hardly could have been contemplated that courts should have authority to impose judicially the very deadlines Congress repeatedly has rejected. Pp. 111-118. 685 F.2d 19, vacated and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 120.Assistant Attorney General McGrath argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, Edwin S. Kneedler, and John F. Cordes.Richard H. Munzing argued the cause for respondents. With him on the brief was Henry A. Freedman.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the Alliance of Social Security Disability Recipients et al. by Eileen P. Sweeny and Bonnie M. Milstein; and for the City of New York by Frederick A. O. Schwarz, Jr., and Leonard Koerner.JUSTICE POWELL delivered the opinion of the Court.The question presented is the validity of an injunction issued on behalf of a statewide class that requires the Secretary of Health and Human Services to adjudicate all future disputed disability claims under Title II of the Social Security Act, 42 U.S.C. 401 et seq., according to judicially established deadlines and to pay interim benefits in all cases of noncompliance with those deadlines.ITitle II of the Social Security Act (Act) was passed in 1935. 49 Stat. 622, as amended, 42 U.S.C. 401 et seq. Among other things, it provides for the payment of disability insurance benefits to those whose disability prevents them from pursuing gainful employment. 42 U.S.C. 423.1 Disability benefits also are payable under the Supplemental Security Income (SSI) program established by Title XVI of the Act, 76 Stat. 197, as amended, 42 U.S.C. 1381. The disability programs administered under Titles II and XVI "are of a size and extent difficult to comprehend." Richardson v. Perales, . Approximately two million disability claims were filed under these two Titles in fiscal year 1983.2 Over 320,000 of these claims must be heard by some 800 administrative law judges each year.3 To facilitate the orderly and sympathetic administration of the disability program of Title II, the Secretary and Congress have established an unusually protective four-step process for the review and adjudication of disputed claims. First, a state agency determines whether the claimant has a disability and the date the disability began or ceased.4 42 U.S.C. 421(a); 20 CFR 404.1503 (1983). Second, if the claimant is dissatisfied with that determination, he may request reconsideration of the determination. This involves a de novo reconsideration of the disability claim by the state agency, and in some cases a full evidentiary hearing. 404.907-404.921. Additional evidence may be submitted at this stage, either on the request of the claimant or by order of the agency. Third, if the claimant receives an adverse reconsideration determination, he is entitled by statute to an evidentiary hearing and to a de novo review by an Administrative Law Judge (ALJ). 42 U.S.C. 405(b); 20 CFR 404.929-404.961 (1983). Finally, if the claimant is dissatisfied with the decision of the ALJ, he may take an appeal to the Appeals Council of the Department of Health and Human Services (HHS).5 404.967-404.983. These four steps exhaust the claimant's administrative remedies. Thereafter, he may seek judicial review in federal district court. 42 U.S.C. 405(g).In this class action, the named plaintiffs sought declaratory and injunctive relief from delays encountered in steps two and three above. The action was initiated by Leon Day in November 1978 after his disability benefits were terminated and he suffered substantial delays in obtaining a reconsideration determination and in securing a hearing before an ALJ.6 After suffering similar delays, Amedie Maurais intervened in the action.7 On June 14, 1979, the District Court certified a statewide class consisting of:"All present and future Vermont residents seeking to secure Social Security disability benefits who, following an initial determination by the defendant that no disability exists, experience an unreasonable delay in the scheduling of and/or issuance of decisions in reconsiderations and fair hearings." App. to Pet. for Cert. 12a, n. 1. Plaintiffs argued before the District Court that the delays they had experienced violated their statutory right under 42 U.S.C. 405(b) (1976 ed., Supp. V) to a hearing within a reasonable time.8 Both parties submitted the case to the District Court on motions for summary judgment. On the basis of the undisputed evidence, the District Court held that, as to all claimants for Title II disability benefits in Vermont, delays of more than 90 days from a request for hearing before an ALJ to the hearing itself were unreasonable.9 It granted partial summary judgment to the plaintiff class on that issue in December 1979.After the submission of additional evidence, the District Court considered motions for summary judgment concerning the reasonableness of delays in the reconsideration process. The additional evidence also was undisputed. It consisted of factual summaries of 77 randomly selected disability cases submitted by the Secretary. The District Court noted that the "summaries support the positions of both parties. They show the reconsideration process is often time consuming and complex. They also show that the process is replete with unexplained delay; other requests are processed with commendable dispatch." App. to Pet. for Cert. 25a. In 27 of the 77 cases, reconsideration determinations took longer than 90 days. In each of these 27, the District Court concluded that the delays were caused by agency inefficiencies and were not justified by the "necessary steps in the reconsideration process." Id., at 28a. On the basis of this survey, the District Court concluded that, as a rule, delays of more than 90 days in making reconsideration determinations were unreasonable and violated the claimant's statutory rights.10 In August 1981, the District Court granted summary judgment for respondents on the reconsideration aspect of the case.In November 1981, the District Court issued an injunction in favor of the statewide class that "ordered and directed [the Secretary] to conclude reconsideration processing and issue reconsideration determinations within 90 days of requests for reconsideration made by claimants."11 The injunction also required ALJs to provide hearings within 90 days after the request is made by claimants.12 Finally, it ordered payment of interim benefits to any claimant who did not receive a reconsideration determination or hearing within 180 days of the request for reconsideration or who did not receive a hearing within 90 days of the hearing request.13 The Court of Appeals for the Second Circuit affirmed the District Court's determination that the challenged delays violated the statute and upheld the District Court's remedial order. Day v. Schweiker, 685 F.2d 19 (1982). We granted certiorari to consider whether it is appropriate for a federal court, without statutory authorization, to prescribe deadlines for agency adjudication of Title II disability claims and to order payment of interim benefits in the event of noncompliance. .14 We conclude that the legislative history makes clear that Congress, fully aware of the serious delays in resolution of disability claims, has declined to impose deadlines on the administrative process. Accordingly, we vacate the judgment below.IIThe Secretary does not challenge here the determination that 405(b) requires administrative hearings to be held within a reasonable time. Nor does she challenge the District Court's determination that the delays encountered in the cases of plaintiffs Day and Maurais violated that requirement.15 She argues only that a statewide injunction that imposes judicially prescribed deadlines on HHS for all future disability determinations is contrary to congressional intent and constitutes an abuse of the court's equitable power. She argues in the alternative that even if the injunction is appropriate, the order requiring payment of interim benefits in cases of noncompliance is not. The Secretary looks primarily to legislative history to support both arguments.AThe Secretary correctly points out that Congress repeatedly has been made aware of the long delays associated with resolution of disputed disability claims and repeatedly has considered and expressly rejected suggestions that mandatory deadlines be imposed to cure that problem.16 She argues that Congress expressly has balanced the need for timely disability determinations against the need to ensure quality decisions in the face of heavy and escalating workloads and limited agency resources. In striking that balance, the Secretary argues, the relevant legislative history also shows that Congress to date has determined that mandatory deadlines for agency adjudication of disputed disability claims are inconsistent with achievement of the Act's primary objectives, and that the District Court's statewide injunction flatly contradicts that legislative determination. We find this argument persuasive.Congressional concern over timely resolution of disputed disability claims under Title II began at least as early as 1975.17 It has inspired almost annual congressional debate since that time.18 The consistency with which Congress has expressed concern over this issue is matched by its consistent refusal to impose on the Secretary mandatory deadlines for resolution of disputed disability claims.In 1975, the House Social Security Subcommittee held hearings on the delays encountered in resolving disputed Social Security claims,19 and 60 Members of the House sponsored a bill imposing statutory deadlines for each step in the administrative review of disputed SSA claims.20 Expressions of concern were voiced in both the Senate and the House over the "huge backlog of some 103,000 cases awaiting hearing" before an ALJ. S. Rep. No. 94-550, p. 3 (1975); accord H. R. Rep. No. 94-679, pp. 1-2 (1975).21 Despite this concern, the Staff of the House Subcommittee advised against statutory deadlines because of the potential "adverse effect on the quality and uniformity of disability adjudication which is already somewhat suspect." Staff of the Subcommittee on Social Security of the House Committee on Ways and Means, Appeals Process: Areas of Possible Administrative or Legislative Action, 94th Cong., 1st Sess., 1-2 (Comm. Print 1975).22 Congress agreed and refused to impose statutory deadlines on the Secretary.Bills proposing statutory deadlines have been proposed almost annually since 1975,23 and congressional concern over the delay problem has remained high. For example, in 1980 Congress directed the Secretary to submit a report recommending the establishment of appropriate and realistic deadlines for resolution of disputed SSA claims. It ordered the Secretary in doing so to consider "both the need for expeditious processing of claims for benefits and the need to assure that all such claims will be thoroughly considered and accurately determined." Pub. L. 96-265, 308, 94 Stat. 458, note following 42 U.S.C. 401. The Senate Report explained that "Congress could then evaluate the recommendations for consistency with the elements it wishes to emphasize and, if needed, take further action next year." S. Rep. No. 96-408, p. 59 (1979).24 The Secretary submitted a report in October 1980, suggesting deadlines of 150 days for reconsideration determinations and 165 days from hearing to posthearing decision, both subject to certain exceptions. U.S. Dept. of Health and Human Services, Report to Congress, Implementation of Section 308, Public Law 96-265, p. 1 (Oct. 21, 1980). The Secretary, however, cautioned Congress that budget and staff limitations and burgeoning workloads "mitigate [sic] against the Department meeting its proposed time limitation objectives in every instance." Id., at 2. Since receiving the Secretary's report, Congress has refused to impose mandatory deadlines on the Secretary, or to direct her to promulgate them herself.Certainly in Congress the concern that mandatory deadlines would jeopardize the quality and uniformity of agency decisions has prevailed over considerations of timeliness. In its most recent comment on the subject, the House Committee on Ways and Means expressly disapproved mandatory hearing deadlines and indicated disagreement with recent judicial decisions imposing such time restrictions. Criticizing the decision in Blankenship v. Secretary of HEW, No. C75-0185L(A) (WD Ky., May 6, 1976), which had imposed judicially prescribed hearing deadlines on the Secretary and ordered the payment of interim benefits in the event of noncompliance,25 the Committee reported:"[The] Committee believes that a disability claimant is entitled to a timely hearing and decision on his appeal, but it also recognizes that the time needed before a well-reasoned and sound disability hearing decision can be made may vary widely on a case-by-case basis... . Establishing strict time limits for the adjudication of every case could result in incorrect determinations because time was not available to ... reach well-reasoned decisions in difficult cases." H. R. Rep. No. 97-588, pp. 19-20 (1982).26 Finally, the Secretary points out that judicially imposed deadlines may vary from case to case and from State to State, requiring HHS to shuffle its staff nationwide. Not only would this tend seriously to disrupt agency administration, but wide variations in judicially imposed deadlines also would prevent realization of Congress' oft-repeated goal of uniform administration of the Act. See, e. g., S. Rep. No. 96-408, pp. 52-56 (1979) (emphasizing concern over "state-to-state" variations and expressing hope that current legislation would "both improve the quality of determinations and ensure that claimants throughout the Nation will be judged under the same uniform standards and procedures") (emphasis added).27 BLegislation enacted by Congress in 1980 and 1982 is fully consistent with the repeated rejection of proposals for mandatory deadlines and with efforts by Congress to ensure quality and uniformity in agency adjudication. In 1980, Congress amended 405(b) to require that every initial determination of ineligibility contain an easily understandable discussion of the evidence and the reasons for the determination. Pub. L. 96-265, 94 Stat. 457, 42 U.S.C. 405(b). At the same time, Congress added 421(i) to require a tri-annual assessment of the continuing eligibility of recipients of disability benefits. Pub. L. 96-265, 94 Stat. 460, 42 U.S.C. 421(i). Congress also included in the 1980 amendments a requirement that the Secretary review at least 65% of all determinations of eligibility made by state agencies in any fiscal year after 1982. Pub. L. 96-265, 94 Stat. 456, 42 U.S.C. 421(c)(2), (3).28 Before 1972, the Secretary had reviewed the majority of state determinations as a matter of course. A growing workload required the Secretary to abandon this practice for a sample review of only 5% of the state agency determinations. H. R. Rep. No. 96-100, p. 10 (1979). The 1980 amendment, requiring review of a substantially higher percentage of state agency disability determinations, presumably will have an effect on the timely resolution of disputed disability claims.29 Finally, in 1983 Congress provided that effective January 1, 1984, an initial determination that previously granted disability benefits should be terminated entitles the claimant not only to a de novo review on reconsideration, but to a full evidentiary hearing as well. Pub. L. 97-455, 96 Stat. 2499, 42 U.S.C. 405(b)(2). All of these changes will impose additional duties on the Secretary and her heavily burdened staff. In light of Congress' continuing concern that mandatory deadlines would subordinate quality to timeliness, and its recent efforts to ensure the quality of agency determinations, it hardly could have contemplated that courts should have authority to impose the very deadlines it repeatedly has rejected.30 CPersuasive evidence of the intention of Congress also is found in the distinction it has made between the resolution of SSI claims for old-age and survivor benefits and SSI claims for disability benefits. Section 405(b), governing eligibility determinations under Title II, and 1383(c)(1), governing eligibility determinations under Title XVI, are virtually identical. In the event of adverse determinations, both require the Secretary to provide claimants with "reasonable notice and opportunity for a hearing." In the case of disputed SSI claims, however, 1383(c)(2) requires a posthearing decision within 90 days of the hearing request, except in the case of disputed disability claims. This provision makes two things clear: (i) Congress will establish hearing deadlines when it deems them appropriate; and (ii) Congress has determined that it is inappropriate to subject disputed disability claims to mandatory deadlines.31 IIIThe Secretary also contends that quite apart from the congressional rejection of the mandatory deadlines discussed above, the District Court's order unduly intruded upon the discretion with which Congress has granted the Secretary to adopt rules and procedures for the adjudication of claims. See Heckler v. Campbell, ; Schweiker v. Gray Panthers, ; Batterton v. Francis, . We need not reach this broader contention, however, because of repeated congressional rejection of the imposition of mandatory deadlines on agency adjudication of disputed disability claims.32 In light of the unmistakable intention of Congress, it would be an unwarranted judicial intrusion into this pervasively regulated area for federal courts to issue injunctions imposing deadlines with respect to future disability claims.33 Accordingly, we vacate the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion.34 It is so ordered. |
8 | Not until several months after petitioner had seasonably filed a petition for rehearing from the Court of Appeals' affirmance of his conviction and he had been advised that he would be notified as soon as there was a ruling on that petition, was he informed (on further inquiry) of the court's denial thereof. Within three weeks of receiving that advice, he filed a petition for certiorari, but thereafter he died. Held: 1. On the facts of this case, waiver of Rule 22 (2)'s time requirement for filing a petition for certiorari is proper. 2. Death pending direct review, whether by certiorari (as in this case) or appeal, of a federal criminal conviction abates all previous prosecutive proceedings. Certiorari granted, 419 F.2d 392; vacated and remandedî to the District Court with directions to dismiss the indictment. |
8 | Certiorari dismissed as improvidently granted. Reported below: 264 Ala. 476, 88 So.2d 561.Peter A. Hall and Orzell Billingsley, Jr. argued the cause and filed a brief for petitioner.William F. Thetford and Robert B. Stewart argued the cause for respondent. With them on the brief were John Patterson, Attorney General of Alabama, and Bernard F. Sykes, Assistant Attorney General.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.MR. JUSTICE DOUGLAS dissents. |
7 | 1. Under the Suits in Admiralty Act, as amended, 46 U.S.C. 741 et seq., respondent filed a libel against the United States in a Federal District Court, alleging that the United States owed respondent $116,511.44 for cargo transported on one of respondent's ships; that respondent had presented a bill for that amount; and that the United States had failed and refused to pay $115,203.76 which was due and payable. The United States filed an answer admitting that respondent had submitted a claim for $116,511.44; denying that the United States had not paid $115,203.76; and further alleging that this sum had been "paid" by application against an indebtedness of respondent to the United States for additional charter hire. Respondent excepted on the ground that the defensive matter pleaded did not arise "out of the same contract, cause of action or transaction for which the libel was filed," and moved that the excepted matter be stricken and that respondent be awarded "judgment on the pleadings." This motion was granted and respondent was awarded a decree pro confesso. Held: This portion of the judgment is sustained. Pp. 315-324. (a) The Government's defense is not properly one of "payment" but one of setoff arising out of a transaction unrelated to the cause of action on which the libel was filed. Pp. 318-319. (b) In an action under the Suits in Admiralty Act, the United States may not defend by pleading against the libelant a claim arising out of a separate and unrelated transaction between the same parties. Pp. 319-322. (c) If the law on this point in admiralty is to be changed, it should be by rulemaking or legislation and not by decision. Pp. 322-324.2. In the final decree, the District Court awarded respondent interest at 4% per annum from the filing of the libel until the entry of the decree and at 4% from the entry of the decree until satisfaction, with this latter interest to be computed upon the entire decree, including the interest up to the date of the decree. Held: Insofar as this judgment awarded compound interest from the date of the decree until the date of satisfaction, it was improper and is reversed. Pp. 324-325. 255 F.2d 816, affirmed in part and reversed in part.Ralph S. Spritzer argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade, Leavenworth Colby and Seymour Farber.Clement C. Rinehart argued the cause for respondent. With him on the brief was Walter P. Hickey.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The principal question presented in this case is whether in an action under the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. 741 et seq., the United States may defend by pleading against the libelant a claim arising out of an unrelated transaction.In 1953, the S. S. Steelworker, a ship belonging to the respondent, Isthmian Steamship Company ("Isthmian"), carried certain cargo for the United States. Isthmian submitted a bill of $116,511.44 for this service. The United States paid $1,307.68 but withheld the remaining $115,203.76. This sum was said to have been applied to an alleged indebtedness of Isthmian to the United States which was claimed to have arisen in 1946, when the United States, acting through the War Shipping Administration, chartered out to Isthmian eight vessels on a bare boat basis. Some disagreement arose over the amount of charter hire due and the United States asserted that Isthmian owed $115,203.76 for additional charter hire for the period from May 1, 1946, to July 31, 1948. The S. S. Steelworker was not one of the boats involved in the 1946 transaction. Isthmian filed a libel in the United States District Court for the Southern District of New York alleging that the United States owed Isthmian $116,511.44 for cargo transported on the S. S. Steelworker; that Isthmian had presented a bill for that amount; and that the United States had failed and refused to pay $115,203.76 which was due and payable.1 Isthmian made no reference whatsoever to the parties' dispute over additional charter hire for the 1946-1948 period.The United States filed an answer admitting that Isthmian had submitted a claim for $116,511.44; denying that the United States had not paid $115,203.76; and further alleging that this sum had been "paid" by application against an indebtedness of Isthmian to the United States for additional charter hire. Shortly before this answer was filed, the United States filed a cross-libel against Isthmian seeking recovery of the additional charter hire of $115,203.76. After filing the answer, the United States moved to consolidate its cross-libel with the original libel on the ground that the additional charter-hire claim was dispositive of both libels.Isthmian excepted to the answer of the United States on the ground that the defensive matter pleaded therein did not arise "out of the same contract, cause of action or transaction for which the libel was filed." Isthmian moved that the excepted matter be stricken and asked "judgment on the pleadings." The District Court held that the answer setting forth the withholding and application of the $115,203.76 did not set forth a defense of payment but rather was a claim of setoff arising from a separate transaction.2 The District Court then held that setoffs arising from distinct transactions could not be asserted in admiralty and sustained Isthmian's exceptions. Since there was no longer any common issue, consolidation of the libel and cross-libel was denied and Isthmian was awarded a decree pro confesso. 134 F. Supp. 854. The Government's cross-libel is still pending.The District Court's final decree awarded interest at 4% per annum on $115,203.76 from the date of the filing of the libel to the day of decree. The District Court further ordered that interest at 4% should run from the date of the decree until it was paid. This second 4% was to be computed on a sum which included the basic recovery, the costs awarded and the interest which had run from the date of the libel to the date of the decree.On appeal, the Court of Appeals for the Second Circuit affirmed. 255 F.2d 816. The Court of Appeals relied on the authority of a case decided at the same time as the instant case, Grace Line, Inc., v. United States, 255 F.2d 810, wherein it was held that withholding and applying did not constitute "payment," but, rather, setoff. Since the withholding and applying in the instant case did not arise out of the same transaction on which the libel was based, the Court of Appeals held it was not cognizable in admiralty. The award of interest was also upheld. We granted certiorari principally to consider the question posed at the outset of this opinion. . The Government presses a threshold argument which, if accepted, would obviate the need to reach the question posed at the outset of this opinion. While admitting the correctness of Isthmian's bill, the Government claims that the bill has been "paid" and argues that the true nature of the dispute between the parties concerns charter hire despite the fact that Isthmian's libel does not mention the charter-hire dispute. We agree with the courts below that the Government's defense is not properly one of payment.The Government relies upon the Act of March 3, 1817, 3 Stat. 366, which now appears in similar form as Section 305 of the Budget and Accounting Act of 1921, 42 Stat. 24, 31 U.S.C. 71. This section provides that the General Accounting Office shall settle and adjust all claims and demands by or against the Government. This is said to mean that when the General Accounting Office administratively sets one claim off against another that is the same as payment. But recognizing the Government's long-standing power to set off is far different from finding that the Government's setoff is "payment" which enables the Government to plead in admiralty foreign and unrelated transactions. See United States v. Munsey Trust Co., ; McKnight v. United States, 13 Ct. Cl. 292, 306, affirmed, ; Climatic Rainwear Co. v. United States, 115 Ct. Cl. 520, 88 F. Supp. 415, 418. In other situations, the claim of withholding and applying has traditionally been treated as setoff. Virginia-Carolina Chemical Co. v. Kirven, ; Merchants Heat & Light Co. v. Clow & Sons, (a recoupment case); Scammon v. Kimball, ; United States v. Eckford, 6 Wall. 484. See also 3 Williston, Contracts (rev. ed. 1936), 887E. In this context, "payment" connotes tender by the debtor with the intention to satisfy the debt coupled with its acceptance as satisfaction by the creditor. See Luckenbach v. McCahan Sugar Co., ; Bronson v. Rodes, 7 Wall. 229, 250; Sheehy v. Mandeville, 6 Cranch 253, 264; United States v. J. A. J. Const. Co., 137 F.2d 584, 586.To consider withholding and applying the equivalent of "payment" would have strange consequences. In Grace Line, Inc., v. United States, supra, for example, the Government had a claim against the carrier which had become time-barred. The carrier performed some unrelated services for the United States and then brought suit to collect. The Government claimed that it had "paid" by withholding the money and applying it to the time-barred claim. Thus, the Government attempted to use its unique concept of "payment" to revive a totally unrelated time-barred claim.We can understand the Government's desire to litigate all of its disputes with Isthmian in one lawsuit, but that is no warrant for abandoning the traditional meaning of the defense of payment.3 We therefore reach the question posed at the outset. Section 3 of the Suits in Admiralty Act, 46 U.S.C. 743, provides that suits against the United States under the Act shall "proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties." With this express command before us, we must ascertain whether admiralty practice permits private parties to defend by setting up claims arising out of separate and unrelated transactions between the parties.Traditionally, admiralty has narrowly circumscribed the filing of unrelated cross-libels and defenses. The first American case considering this problem appears to be Willard v. Dorr, 29 Fed. Cas. No. 17,680 (1823), in which Justice Story sitting as Circuit Justice refused to permit the attempted setoff. Since that early holding various reasons have been offered for refusal to entertain unrelated defenses: protection of the seaman's wage claims;4 preservation of relatively simple proceedings not affecting third-party rights;5 and the recognition that allowing cross-libels might deprive litigants of jury trials to which they would otherwise be entitled if the cross-libel were pressed in an independent proceeding.6 But for whatever reason, the doctrine gained general acceptance.7 This consistent pattern of the cases in admiralty on this point was reflected in the promulgation of Rule 54 of the Admiralty Rules by this Court at December Term, 1868, 7 Wall. v: "Whenever a cross-libel is filed upon any counter claim arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages as claimed in said cross-libel, unless the court on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given." That rule has remained in the Admiralty Rules8 ever since with only slight change and now appears as Rule 50 in the following form which still reflects the underlying settled state of the law: "Whenever a cross-libel is filed upon any counter-claim arising out of the same contract or cause of action for which the original libel was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given unless the court otherwise directs."9 But the Government urges the Court in this particular case to apply the more flexible procedure utilized in civil cases in federal courts.10 The Government contends that none of the reasons for limited cross-libels suggested above has any application to the particular facts of this case and that, moreover, the rule has become an anachronism and is out of line with the practice in specific courts11 and with the general rules of practice for federal courts.12 But it should be observed that where the procedure has been changed in this regard it has been the result of legislation or rulemaking and not the decisional process.13 The law on this point in admiralty has been settled beyond doubt in the lower courts for many years and an Admiralty Rule of this Court recognizes this case law. We think that if the law is to change it should be by rulemaking or legislation and not by decision.Whether the setoff and cross-libel procedure now operative in admiralty is anachronistic, is not a matter best considered by this Court in a litigation without the benefits which normally accompany intelligent rulemaking - including hearings and opportunities to submit data. In addition to this Court's responsibility for rulemaking, the Judicial Conference of the United States14 has been given certain responsibilities in this area by the Act of July 11, 1958, 72 Stat. 356: "The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law. The result in this case does not cause irreparable loss to the United States nor indeed require any expenditure of government funds prior to the complete disposition of all claims. The Government is authorized to withhold payment of Isthmian's judgment in this case to the extent the Government has claims outstanding against Isthmian.15 The only requirement is that the Government press the libel now pending in the District Court. In other situations where no suit is pending, the United States may have to commence a separate suit rather than set up an unrelated defense in the original suit. This may be an inconvenience to the United States but it must be remembered that Congress has expressly declared that when sued under the Suits in Admiralty Act the United States is to have its procedural rights determined and governed in the same manner as private parties.The Government also complains that the District Court improperly awarded compound interest. This resulted from the decree's direction that interest be computed at 4% from the filing of the libel until the entry of the decree, and that interest run at 4% from decree until satisfaction with this latter interest to be computed upon the entire decree including the interest up to decree.Section 3 of the Suits in Admiralty Act, 46 U.S.C. 743, provides: "A decree against the United States ... may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 per centum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest shall run as ordered by the court... ." Congress' demonstrated concern with the problem of interest under the Suits in Admiralty Act indicates that it intended to cover these awards affirmatively and not have them controlled by the general command that the suit "shall proceed and shall be heard and determined according to the principles of law" applicable to private parties. Section 3 provides for but one award of interest in the decree and that award is limited to 4% until satisfaction. We find nothing in the rather ambiguous statute authorizing the accumulation of interest up to the decree and then a second independent award of interest which operates upon the first interest. Compound interest is not presumed to run against the United States. See Cherokee Nation v. United States, .The judgment is affirmed as to entry of the decree pro confesso. The award of compound interest was improper and the judgment is reversed and remanded for proceedings not inconsistent with this opinion. It is so ordered. |
9 | California requires a public works project contractor to pay its workers the prevailing wage in the project's locale, but allows payment of a lower wage to participants in a state approved apprenticeship program. After respondent Dillingham Construction subcontracted some of the work on its state contract to respondent Arceo, doing business as Sound Systems Media, the latter entered a collective bargaining agreement that included an apprenticeship wage scale and provided for affiliation with an apprenticeship committee that ran an unapproved program. Sound Systems Media thereafter relied on that committee for its apprentices, to whom it paid the apprentice wage. Petitioner California Division of Apprenticeship Standards issued a notice of noncompliance to both Dillingham and Sound Systems Media, charging that paying the apprentice wage, rather than the prevailing journeyman wage, to apprentices from an unapproved program violated the state prevailing wage law. Respondents sued to prevent petitioners from interfering with payment under the subcontract, alleging, inter alia, that §514(a) of the Employee Retirement Income Security Act of 1974 (ERISA) pre empted enforcement of the state law. The District Court granted petitioners summary judgment, but the Ninth Circuit reversed, holding that the apprenticeship program was an "employee welfare benefit plan" under ERISA §3(1), and that the state law "relate[d] to" the plan and was therefore superseded under §514(a).Held: California's prevailing wage law does not "relate to" employee benefit plans, and thus is not pre empted by ERISA. Pp. 6-17.(a) A state law "relate[s] to" a covered employee benefit plan for§514(a) purposes if it (1) has a "connection with" or (2) "reference to" such a plan. E.g., District of Columbia v. Greater Washington Bd. of Trade, . A law has the forbidden reference where it acts immediately and exclusively upon ERISA plans, as in Mackey v. Lanier Collection Agency & Service, Inc., , or where the existence of such plans is essential to its operation, as in, e.g., Greater Washington Bd. of Trade, supra, and Ingersoll Rand Co. v. McClendon, . To determine whether a state law has a connection with ERISA plans, this Court looks both to ERISA's objectives as a guide to the scope of the state law that Congress understood would survive, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.___, ___, and to the nature of the law's effect on ERISA plans, id., at ___. Where federal law is said to pre empt state action in fields of traditional state regulation, this Court assumes that the States' historic police powers are not superseded unless that was Congress' clear and manifest purpose. E.g., id., at ___. Pp. 6-8.(b) Because it appears that approved apprenticeship programs need not be ERISA plans, the California law does not make "reference to" such plans. On its face, the law seems to allow the lower apprentice wage only to a contractor who acquires apprentices through a "joint apprenticeship committee"--an apprenticeship program sponsored by the collective efforts of management and organized labor. To comport with federal law, the expenses of such a committee must be defrayed out of monies placed into a separate fund, the existence of which triggers ERISA coverage. However, applicable regulations make clear that the class of apprenticeship program sponsors who may provide approved apprentices under California law is broad enough to include a single employer who defrays the costs of its program out of general assets. An employee benefit program so funded, and not paid for through a separate fund, is not an ERISA plan. See, e.g., Massachusetts v. Morash, . The California law is indifferent to the funding, and, thus, to the ERISA coverage, of apprenticeship programs; accordingly, it makes no "reference to" ERISA plans. Pp. 8-11.(c) Nor does the California law have a "connection with" ERISA plans. In every relevant respect, that law is indistinguishable from the New York statute upheld in Travelers, supra. As with the New York statute, the Court discerns no congressional intent to pre empt the areas of traditional state regulation with which the California law is concerned. 514 U. S., at ___. And, like the New York statute, the California prevailing wage law does not bind ERISA plans — legally or as a practical matter — to anything. It merely provides some measure of economic incentive to apprenticeship programs to comportwith the State's apprenticeship standards by authorizing lower wage payments to workers enrolled in approved apprenticeship programs. Cf. id., at ___. This Court could not hold the California law superseded based on so tenuous a relation without doing grave violence to the presumption that Congress does not intend the pre emption of state laws in traditionally state regulated areas. Pp. 11-17.57 F. 3d 712, reversed and remanded.Thomas, J., delivered the opinion for a unanimous Court. Scalia, J., filed a concurring opinion, in which Ginsburg, J., joined. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNo. 95-789CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT, et al., PETITIONERS v. DILLINGHAM CONSTRUCTION, N. A., INC., and MANUEL J. ARCEO, dba SOUND SYSTEMS MEDIAon writ of certiorari to the united states court of appeals for the ninth circuit[February 18, 1997]Justice Thomas delivered the opinion of the Court.The State of California requires a contractor on a public works project to pay its workers the prevailing wage in the project's locale. An exception to this requirement permits a contractor to pay a lower wage to workers participating in an approved apprenticeship program. This case presents the question whether the pre emption provision of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., supersedes California's prevailing wage law to the extent that the law prohibits payment of an apprentice wage to an apprentice trained in an unapproved program. We conclude that California's law does not "relate to" employee benefit plans, and thus is not pre empted.Since 1931, the Davis Bacon Act, 46 Stat. 1494, as amended, 40 U.S.C. §§ 276a to 276a — 5, has required that the wages paid on federal public works projectsequal wages paid in the project's locale on similar, private construction jobs. California, in 1937, adopted a similar statute, which requires contractors who are awarded public works projects to pay their workers "not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed." Cal. Lab. Code Ann. §1771 (West 1989). Under both the Davis Bacon Act and California's prevailing wage law, public works contractors may pay less than the prevailing journeyman wage to apprentices in apprenticeship programs that meet standards promulgated under the National Apprenticeship Act, 50 Stat. 664, as amended, 29 U.S.C. § 50 (known popularly as the Fitzgerald Act). 1 See 29 CFR § 29.5(b)(5) (1996); Cal. Lab. Code Ann. §1777.5 (West 1989 and Supp. 1997). California public works contractors are not obliged to employ apprentices, but if they do, the apprentice wage is only permitted for those apprentices in approved programs.The federal arbiter of apprenticeship program adequacy is the Bureau of Apprenticeship and Training (BAT), located within the Department of Labor. An apprenticeship program that seeks to provide federal public works contractors with apprentice wage eligible apprentices must receive the blessing of either the BAT or a "State Apprenticeship Agency." 29 CFR § 29.3 (1996). Since 1978, California's state apprenticeship agency, the California Apprenticeship Council (CAC), has been authorized under 29 CFR § 29.12 to approve apprenticeship programs for federal purposes. App. 37. California has also charged the CAC with approving apprenticeship programs for purposes of California's prevailing wage statute. See Cal. Lab. Code Ann. §3071 (West 1989). Pursuant to the Fitzgerald Act, the United States Secretary of Labor has promulgated apprenticeship program standards. 29 CFR § 29.5. California has adopted its own apprenticeship standards, 8 Cal. Code Regs. §212 (1996), that are "substantively similar" to the federal standards. Southern Cal. Chapter of Associated Builders and Contractors, Inc., Joint Apprenticeship Committee v. California Apprenticeship Council, 4 Cal. 4th 422, 434, 841 P. 2d 1011, 1017 (Cal. 1992) (Southern Cal. ABC). The CAC uses its own standards whether approving an apprenticeship program for federal or for state purposes.An apprenticeship program in California may be sponsored by an individual employer, an individual labor union, a group of employers, a group of labor organizations, or by a joint management labor venture (a so called joint apprenticeship committee). See Cal. Lab. Code Ann. §3075 (West 1989).In the spring of 1987, respondent Dillingham Construction was awarded a public works contract as the general contractor for the construction of the Sonoma County Main Adult Detention Facility. Dillingham subcontracted electronic installation work to respondent Manuel J. Arceo, doing business as Sound Systems Media.When Sound Systems Media was awarded the subcontract, it was signatory to a collective bargaining agreement that provided a wage scale for apprentices, and required Sound Systems Media to contribute to a CAC approved apprenticeship program, the Northern California Sound and Communications Joint ApprenticeshipTraining Committee.In May 1988, after work on the project was underway, the existing union withdrew its representation of Sound Systems Media employees. Two months later, Sound Systems Media entered a new collective bargaining agreement with a different union. That agreement, like the earlier one, included a scale of wages for apprentices and provided for an affiliation with a joint apprenticeship committee, the Electronic and Communications Systems Joint Apprenticeship Training Committee (Electronic and Communications Systems JATC). Sound Systems Media relied on this new committee for its apprentices, to whom it paid the apprentice wage provided in the collective bargaining agreement. The Electronic and Communications Systems JATC, however, did not seek CAC approval until August 1989 and did not gain approval until October 1990. That approval was not retroactive.In March 1989, yet another union filed a complaint against Sound Systems Media with petitioner Division of Apprenticeship Standards of the California Department of Industrial Relations. Petitioner issued a notice of noncompliance to both Dillingham Construction and Sound Systems Media, charging that Sound Systems Media had violated Cal. Lab. Code Ann. §1771 by paying the apprentice wage, rather than the prevailing journeyman wage, to apprentices from a non approved program. The County of Sonoma was ordered to withhold certain monies from Dillingham Construction for the violation.Respondents filed suit to prevent petitioners from interfering with payment under the subcontract. Their complaint alleged, inter alia, that ERISA pre empted enforcement of the prevailing wage law. Respondents argued that the Electronic and Communications Systems JATC was an "employee welfare benefit plan" within themeaning of ERISA §3(1), 29 U.S.C. § 1002(1), 2 and that California's prevailing wage statute "relate[d] to" it, and was therefore superseded by ERISA's pre emption provision, §514(a), 29 U.S.C. § 1144(a). 3 The District Court agreed that the prevailing wage statute "relate[d] to" ERISA plans, but concluded that pre emption was forestalled by ERISA's saving clause, §514(d), 29 U.S.C. § 1144(d). 4 Pre emption of the prevailing wage statute, the District Court determined, would "impair the purposes of the Fitzgerald Act and its regulations within the meaning of ERISA's savings clause." Dillingham Constr. N.A., Inc. v. County of Sonoma, 778 F. Supp. 1522, 1530 (ND Cal. 1991).The Court of Appeals for the Ninth Circuit reversed. 57 F. 3d 712 (1995). Agreeing with the District Court, the Ninth Circuit held that the Electronic and Communications Systems JATC was an employee welfare benefit plan and that §1777.5 "relate[d] to" it. Id., at 718-719. Because California's prevailing wage statutewas not an "enforcement mechanism" of the Fitzgerald Act, however, the Ninth Circuit parted company with the District Court and held that §1777.5 was not preserved by ERISA's saving clause. Id., at 721. The decision of the Court of Appeals accorded with that of the Tenth Circuit Court of Appeals in National Elevator Industry, Inc. v. Calhoon, 957 F. 2d 1555 (CA10), cert. denied, . Both decisions conflict — as to whether a state prevailing wage law "relate[s] to" apprenticeship programs, and as to the reach of the saving clause — with that of the Eighth Circuit in Minnesota Chapter of Associated Builders and Contractors, Inc. v. Minnesota Dept. of Labor and Industry, 47 F. 3d 975 (CA8 1995). We granted certiorari___ (1996), and now reverse.Both lower courts determined, and neither party disputes, that the Electronic and Communications Systems JATC was a "plan, fund, or program [that] was established or is maintained for the purpose of providing for its participants ... apprenticeship or other training programs." §3(1), 29 U.S.C. § 1002(1). The question thus presented to us is whether California's prevailing wage statute "relate[s] to" that "employee welfare benefit plan" within the meaning of ERISA's pre emption clause.Since shortly after its enactment, we have endeavored with some regularity to interpret and apply the "unhelpful text" of ERISA's pre emption provision. New York State Conference of Blue Cross and Blue Shield Plans v. Travelers Ins. Co.___ (1995) (slip op., at 9). We have long acknowledged that ERISA's pre emption provision is "clearly expansive." Id., at ___ (slip op., at 8). It has:"a `broad scope,' Metropolitan Life Ins. Co. v. Massachusetts, , and an `expansive sweep,' Pilot Life Ins. Co. v. Dedeaux, ; and ... it is `broadly worded,' Ingersoll Rand Co. v. McClendon, , `deliberately expansive,' Pilot Life, supra, at 46, and `conspicuous for its breadth,' [FMC Corp. v. Holliday, ." Morales v. Trans World Airlines, Inc., .Our efforts at applying the provision have yielded a two part inquiry: A "law `relate[s] to' a covered employee benefit plan for purposes of §514(a) `if it [1] has a connection with or [2] reference to such a plan.' " District of Columbia v. Greater Washington Bd. of Trade, (quoting Shaw v. Delta Air Lines, Inc., ). Under the latter inquiry, we have held pre empted a law that "impos[ed] requirements by reference to [ERISA] covered programs," Greater Washington Bd. of Trade, supra, at 130-131; a law that specifically exempted ERISA plans from an otherwise generally applicable garnishment provision, Mackey v. Lanier Collection Agency & Service, Inc., , n. 2, 829-830 (1988); and a common law cause of action premised on the existence of an ERISA plan, Ingersoll Rand Co., supra, at 140. Where a State's law acts immediately and exclusively upon ERISA plans, as in Mackey, or where the existence of ERISA plans is essential to the law's operation, as in Greater Washington Bd. of Trade and Ingersoll Rand, that "reference" will result in pre emption.A law that does not refer to ERISA plans may yet be pre empted if it has a "connection with" ERISA plans. Two Terms ago, we recognized that an "uncritical literalism" in applying this standard offered scant utility in determining Congress' intent as to the extent of §514(a)'s reach. Travelers, 514 U. S., at ___ (slip op., at 9). Rather, to determine whether a state law has the forbidden connection, we look both to "the objectives of the ERISA statute as a guide to the scope of the statelaw that Congress understood would survive," ibid., as well as to the nature of the effect of the state law on ERISA plans, id., at ___ (slip op. at 12).As is always the case in our pre emption jurisprudence, where "federal law is said to bar state action in fields of traditional state regulation ... we have worked on the `assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Con gress.' " Id., at ___ (slip op. at 8) (quoting Rice v. Santa Fe Elevator Corp., ) (citation omitted).Respondents and several of their amici urge us to conclude that §1777.5 makes "reference to" ERISA plans. Because it seems that approved apprenticeship programs need not necessarily be ERISA plans, we decline to do so.On its face, §1777.5 appears to allow the lower apprentice wage only to a contractor who acquires apprentices through a "joint apprenticeship committee"--an apprenticeship program sponsored by the collective efforts of management and organized labor. See Cal. Lab. Code Ann. §§3075, 3076 (West 1989). Were this the true extent of the prevailing wage law's reach, respondents' "reference to" argument might be more persuasive. The CAC has, however, promulgated regulations making clear that the class of apprenticeship program sponsors who may provide approved apprentices is broader. See 8 Cal. Code Regs. §230.1(a) (1992) ("Registered apprentices can only be obtained from the Apprenticeship Committee of the craft or trade in the area of the site of the public work") (emphasis added); id., §228(c) (defining an apprenticeship committee as "an apprenticeship program sponsor"); Cal. Lab. Code Ann. §3075 (West 1989) (stating that an "apprenticeshipprogram sponsor may be a joint apprenticeship committee, unilateral management or labor apprenticeship committee, or an individual employer"). An apprenticeship program, it would seem, can be maintained by a single employer, and its costs can be defrayed out of that employer's general assets.To comport with §302(c)(6) of the Labor Management Relations Act, 1947, 61 Stat. 157, as amended, 29 U.S.C. § 186(c)(6), the expenses of any joint apprenticeship committee must be defrayed out of monies placed into a separate fund. The existence of that fund triggers ERISA coverage over programs like that of the Electronic and Communications Systems JATC. See ERISA Advisory Op. No. 94-14A (Apr. 20, 1994). But an employee benefit program not funded through a separate fund is not an ERISA plan. In Massachusetts v. Morash, , we recognized a distinction between vacation benefits paid out of an accumulated fund and those paid out of an employer's general assets. A fund established to pay vacation benefits, we held, constituted an employee welfare benefit plan; the policy at issue in Morash, whereby vacation benefits were paid out of general assets, did not. The distinction, we concluded, was compelled by ERISA's object and policy:"In enacting ERISA, Congress' primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds. To that end, it established extensive reporting, disclosure, and fiduciary duty requirements to insure against the possibility that the employee's expectation of the benefit would be defeated through poor management by the plan administrator." Id., at 115 (citation and footnote omitted).Benefits paid out of an employer's general assets presented risks indistinguishable from "the danger of defeated expectations of wages for services performed," a hazard with which ERISA is unconcerned. Ibid.The Secretary has carried this funded/unfunded distinction into areas that are, we think, analogous to that of apprenticeship programs. See, e.g., 29 CFR § 2510.3-1(k) (scholarship programs paid for out of an employer's general assets are not ERISA plans); §2510.3-1(b)(3)(iv) (training provided on the job with general assets does not constitute ERISA plan); see also ERISA Advisory Op. No. 94-14A (April 29, 1994) (apprenticeship programs paid for out of trust funds are ERISA plans); ERISA Advisory Op. No. 83-32A (June 21, 1983) (in house professional development program financed out of general assets is not an ERISA plan). Although none of these regulations specifically answers the question whether an unfunded apprenticeship program is covered by ERISA, they suggest — as does our decision in Morash — that it is not. 5 Section 1777.5, then, "functions irrespective of ... the existence of an ERISA plan." Ingersoll Rand Co., 498 U.S., at 139. An apprenticeship program meeting the substantive standards set forth in the Fitzgerald Actregulations can be approved whether or not its funding apparatus is of a kind as to bring it under ERISA. See Southern Cal. ABC, 4 Cal. 4th, at 429, n. 1, 841 P. 2d, at 1014, n. 1. Section 1777.5 is indifferent to the funding, and attendant ERISA coverage, of apprenticeship programs. Accordingly, California's prevailing wage statute does not make reference to ERISA plans. We turn now to the question whether it nonetheless has a "connection with" such plans.In Shaw v. Delta Air Lines, Inc., we held that the New York Human Rights Law, which prohibited "employers from structuring their employee benefit plans in a manner that discriminates on the basis of pregnancy," and New York's Disability Benefits Law, which required "employers to pay employees specific benefits," "relate[d] to" ERISA plans. 463 U.S., at 97. Shaw and other of our ERISA pre emption decisions, see, e.g., FMC Corp. v. Holliday, ; Alessi v. Raybestos-Manhattan, Inc., , presented us with state statutes that "mandated employee benefit structures or their administration"; in those cases, we concluded that these requirements amounted to "connection[s] with" ERISA plans. See Travelers, 514 U. S., at ___ (slip op., at 11).The state law at issue in Travelers, our most recent exercise in ERISA pre emption, stands in considerable contrast. That statute regulated hospital rates, and required hospitals to exact surcharges (ranging from 9% to 24% of the rate set under the statute) from patients whose hospital bills were paid by any of a variety of non Blue Cross/Blue Shield providers. Because ERISA plans, as might be expected, were predominant among the purchasers of insurance, see Brief for Petitioner in Travelers, O. T. 1994, No. 93-1408, p. 1-2, the statute was asserted to run afoul of ERISA's pre emption provision. The differential rates charged to commercially insured patients and to patients insured by Blue Cross/Blue Shield (collectively "the Blues") made commercial insurance relatively more expensive — and relatively less attractive. The resulting cost variations encouraged insurance purchasers, including ERISA plans, to provide insurance benefits through the Blues. Commercial insurers argued that these cost variations and their resulting economic effects had a "connection with" those ERISA plans, requiring pre emption of the law that dictated them.We upheld the statute. The "indirect economic influence" of the surcharge, we noted, did not "bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself." 514 U. S., at ___ (slip op., at 13). Nor did the indirect influence of the surcharge "preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishe[d] to provide one." Ibid. Indeed, if ERISA were concerned with any state action — such as medical care quality standards or hospital workplace regulations — that increased costs of providing certain benefits, and thereby potentially affected the choices made by ERISA plans, we could scarcely see the end of ERISA's pre emptive reach, and the words "relate to" would limit nothing. Id., at ___ (slip op., at 14-15). We also noted that several States regulated hospital charges at the time that ERISA was enacted, and yet neither ERISA's language nor legislative history made any mention of pre empting these state efforts. 6 We think that, in every relevant respect, California's prevailing wage statute is indistinguishable from New York's surcharge program. At the outset, we note that apprenticeship standards and the wages paid on state public works have long been regulated by the States. As discussed in Part I A, supra, California has required that prevailing wages be paid on its public works projects for nearly as long as Congress has required them to be paid on Federal projects, and for more than 40 years prior to the enactment of ERISA. Similarly, California has legislated in the apprenticeship area for the better part of this century. See, e.g., The Shelley Maloney Apprentice Labor Standards Act, 1939 Cal. Stat. 220, codified at Cal. Lab. Code §3070 et seq. Congress, in the Fitzgerald Act, recognized pre existing State efforts in regulating apprenticeship programs and apparently expected that those efforts would continue. See 29 U.S.C. § 50 (directing the Secretary of Labor "to cooperate with State agencies engaged in the formulation and promotion of standards of apprenticeship"); see also H. R. Rep. No. 945, 75th Cong., 1st Sess., 2 (1937).That the States traditionally regulated these areas would not alone immunize their efforts; ERISA certainly contemplated the pre emption of substantial areas of traditional state regulation. The wages to be paid on public works projects and the substantive standards to be applied to apprenticeship training programs are, however, quite remote from the areas with which ERISA is expressly concerned--%reporting, disclosure, fiduciary responsibility, and the like." Travelers, supra, at ___ (slip op., at 15) (quoting Shaw, 463 U.S., at 98). A reading of §514(a) resulting in the pre emption of traditionally state regulated substantive law in those areas where ERISA has nothing to say would be "unsettling," Travelers, supra, at ___ (slip op., at 18). 7 Given the paucity of indication in ERISA and its legislative history of any intent on the part of Congress to pre empt state apprenticeship training standards, or state prevailing wage laws that incorporate them, we are reluctant to alter our ordinary "assumption that the historic police powers of the States were not to be superseded by the Federal Act." Rice, 331 U.S., at 230. 8 Accordingly, asin Travelers, we address the substance of the California statute with the presumption that ERISA did not intend to supplant it.Like New York's surcharge requirement, the apprenticeship portion of the prevailing wage statute does not bind ERISA plans to anything. No apprenticeship program is required by California law to meet California's standards. See Southern Cal. ABC, 4 Cal. 4th, at 428, 841 P. 2d, at 1013. If a contractor chooses to hire apprentices for a public works project, it need not hire them from an approved program (although if it does not, it must pay these apprentices journeyman wages). So, apprenticeship programs that have not gained CAC approval may still supply public works contractors with apprentices. Unapproved apprenticeship programs also may supply apprentices to private contractors. 9 The effect of §1777.5 on ERISA apprenticeship programs, therefore, is merely to provide some measure of economic incentive to comport with the State's requirements, at least to the extent that those programs seek to provide apprentices who can work on public works projects at a lower wage.Apprenticeship programs have confronted these differential economic incentives since well before the enactment of ERISA, and would face them today even if California had no prevailing wage statute. To supply apprentices eligible for the apprenticeship wage to federal public works contractors, an apprenticeship program must meet the standards promulgated by California under the Fitzgerald Act. 10 What is more, with or without the possibility of being able to provide apprentices eligible for a lower wage on public projects, apprenticeship programs in California have other incentives to seek CAC approval. See Southern Cal. ABC, 4 Cal. 4th, at 429, 841 P. 2d, at 1013 ("[i]n California, additional financial incentives exist in the form of direct financial subsidies for training provided by approved programs," and because "an apprentice who completes an approved training program obtains a certificate of completion naming him or her a skilled journeyman in the chosen trade"). It cannot be gainsaid that §1777.5 has the effect of encouraging apprenticeship pro grams — including ERISA plans — to meet the standards set out by California, but it has not been demon strated here that the added inducement created by thewage break available on state public works projects is tantamount to a compulsion upon apprenticeshipprograms. 11 The effect of the prevailing wage statute on ERISA covered apprenticeship programs in California is substantially similar to the effect of New York law on ERISA plans choosing whether to provide health insurance benefits in New York through the Blues, or through a commercial carrier. The prevailing wage statute alters the incentives, but does not dictate the choices, facing ERISA plans. In this regard, it is "no different from myriad state laws in areas traditionally subject to local regulation, which Congress could not possibly have intended to eliminate." Travelers, 514 U. S., at ___ (slip op., at 22). We could not holdpre empted a state law in an area of traditional state regulation based on so tenuous a relation withoutdoing grave violence to our presumption that Congress intended nothing of the sort. We thus conclude that California's prevailing wage laws and apprenticeship standards do not have a "connection with," and therefore do not "relate to," ERISA plans. 12 For the reasons stated herein, the judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.U.S. Supreme CourtNo. 95-789CALIFORNIA DIVISION OF LABOR STANDARDS ENFORCEMENT, et al., PETITIONERS v. DILLINGHAM CONSTRUCTION, N. A., INC., and MANUEL J. ARCEO, dba SOUND SYSTEMS MEDIAon writ of certiorari to the united states court of appeals for the ninth circuit[February 18, 1997]Justice Scalia , with whom Justice Ginsburg joins, Since ERISA was enacted in 1974, this Court has accepted certiorari in, and decided, no less than 14 cases to resolve conflicts in the Courts of Appeals regarding ERISA pre emption of various sorts of state law. 1 The rate of acceptance, moreover, has not diminished (wehave taken two more ERISA pre emption cases so far this Term), 2 suggesting that our prior decisions have not succeeded in bringing clarity to the law.I join the Court's opinion today because it is a fair description of our prior case law, and a fair application of the more recent of that case law. Today's opinion is no more likely than our earlier ones, however, to bring clarity to this field — precisely because it does obeisance to all our prior cases, instead of acknowledging that the criteria set forth in some of them have in effect been abandoned. Our earlier cases sought to apply faithfully the statutory prescription that state laws are pre empted "insofar as they ... relate to any employee benefit plan." Hence the many statements, repeated today, to the effect that the ERISA pre emption provision has a "broad scope," an "expansive sweep," is "broadly worded," "deliberately expansive," and "conspicuous for its breadth." Ante, at 6-7. But applying the "relate to" provision according to its terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else. Accord, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.___, ___ (1995) (slip op., at 8-9). The statutory text provides an illusory test, unless the Court is willing to decree a degree of pre emption that no sensible person could have intended — which it is not.I think it would greatly assist our function of clarifying the law if we simply acknowledged that our first take on this statute was wrong; that the "relate to" clause of the pre emption provision is meant, not to set forth a test for pre emption, but rather to identify the field in which ordinary field pre emption applies — namely, the field of laws regulating "employee benefit plan[s] described in section 1003(a) of this title and not exempt under section 1003(b) of this title," 29 U.S.C. § 1144(a). Our new approach to ERISA pre emption is set forth in John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, : "we discern no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre emption analysis." I think it accurately describes our current ERISA jurisprudence to say that we apply ordinary field pre emption, and, of course, ordinary conflict pre emption. See generally Silkwood v. Kerr-McGee Corp., (explaining general principles of field and conflict pre emption); Rice v. Santa Fe Elevator Corp., (field pre emption); Florida Lime & Avocado Growers, Inc. v. Paul, (conflict pre emption). Nothing more mysterious than that; and except as establishing that, "relates to" is irrelevant. |
0 | During jury selection in petitioner Rivera's state-court first-degree murder trial, his counsel sought to use a peremptory challenge to excuse venire member Deloris Gomez. Rivera had already exercised two peremptory challenges against women, one of whom was African-American. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was biased against him. The trial court rejected the peremptory challenge out of concern that it was discriminatory. Under Batson v. Kentucky, 476 U. S. 79, and later decisions applying Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors based on race, ethnicity, or sex. At trial, the jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. The Illinois Supreme Court subsequently affirmed the conviction, holding that the peremptory challenge should have been allowed, but rejecting Rivera's argument that the improper seating of Gomez was a reversible error. Observing that the Constitution does not mandate peremptory challenges and that they are not necessary for a fair trial, the court held that the denial of Rivera's peremptory challenge was not a structural error requiring automatic reversal. Nor, the court found, was the error harmless beyond a reasonable doubt. The court added that it did not need to decide whether the trial court's denial was "an error of constitutional dimension" in the circumstances of Rivera's case, a comment that appears to be related to Rivera's arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated the Fourteenth Amendment's Due Process Clause.Held: Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court's good-faith error in denying the defendant's peremptory challenge to a juror. Pp. 6-12. (a) Rivera maintains that due process requires reversal whenever a criminal defendant's peremptory challenge is erroneously denied. He asserts that a trial court that fails to dismiss a lawfully challenged juror commits structural error because the jury becomes an illegally constituted tribunal, whose verdict is per se invalid; that this is true even if the Constitution does not mandate peremptory challenges, since criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights; that the issue is not amenable to harmless-error analysis, as it is impossible to ascertain how a properly constituted jury would have decided his case; and that automatic reversal therefore must be the rule as a matter of federal law. Rivera's arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. There is no freestanding constitutional right to peremptory challenges. See, e.g., United States v. Martinez-Salazar. They are "a creature of statute," Ross v. Oklahoma, 487 U. S. 81, 89, which a State may decline to offer at all, Georgia v. McCollum, 505 U. S. 42, 57. Thus, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. See, e.g., Engle v. Isaac, 456 U. S. 107, 121, n. 21. The Due Process Clause safeguards not the meticulous observance of state procedural prescriptions, but "the fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U. S. 554, 563-564. Pp. 6-8. (b) The trial judge's refusal to excuse Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Ross is instructive. There, a criminal defendant used a peremptory challenge to rectify an Oklahoma trial court's erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. Even though the trial court's error might "have resulted in a jury panel different from that which would otherwise have decided [Ross's] case," 487 U. S., at 87, because no member of the jury as finally composed was removable for cause, there was no violation of his Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process, id., at 86-91. This Court reached the same conclusion with regard to a federal-court trial in Martinez-Salazar, 528 U. S., at 316. Rivera's efforts to distinguish Ross and Martinez-Salazar are unavailing. First, although in contrast to Rivera, the Ross and Martinez-Salazar defendants did not challenge any of the jurors who were in fact seated, neither Gomez nor any other member of Rivera's jury was removable for cause. Thus, like the Ross and Martinez-Salazar juries, Rivera's jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel, but this Court rejects the notion that a juror is constitutionally disqualified whenever she is aware of a challenge. Second, it is not constitutionally significant that, in contrast to Ross and Martinez-Salazar, the seating of Gomez over Rivera's peremptory challenge was at odds with state law. Errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Rather, his conduct reflected a good-faith effort to enforce Batson's antidiscrimination requirements. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a defendant's discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Pp. 8-10. (c) Rivera errs in insisting that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. He relies on a suggestion in Swain v. Alabama, 380 U. S. 202, 219, that "[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice." This statement was disavowed in Martinez-Salazar, see 528 U. S., at 317, n. 4. Typically, an error is designated as "structural," therefore "requir[ing] automatic reversal," only when "the error 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Washington v. Recuenco, 548 U. S. 212, 218-219. The mistaken denial of a state-provided peremptory challenge does not, in the circumstances here, constitute such an error. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. See, e.g., Batson, 476 U. S., at 86, 87. A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy, resulting in a judgment invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U. S. 69. Nothing in those decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal's composition. Absent a federal constitutional violation, States are free to decide, as a matter of state law, that a trial court's mistaken denial of a peremptory challenge is reversible error per se or, as the Illinois Supreme Court implicitly held here, that the improper seating of a competent and unbiased juror could rank as a harmless error under state law. Pp. 10-12.227 Ill. 2d 1, 879 N. E. 2d 876, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court.MICHAEL RIVERA, PETITIONER v. ILLINOISon writ of certiorari to the supreme court of illinois[March 31, 2009] Justice Ginsburg delivered the opinion of the Court. This case concerns the consequences of a state trial court's erroneous denial of a defendant's peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant's conviction? Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court's rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera's jury and indeed served as the jury's foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera's conviction. We affirm the judgment of the Illinois Supreme Court. The right to exercise peremptory challenges in state court is determined by state law. This Court has "long recognized" that "peremptory challenges are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court's determination that, in the circumstances Rivera's case presents, the trial court's error did not warrant reversal of his conviction.I Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a 16-year-old African-American, after mistaking Lee for a member of a rival gang. During jury selection, Rivera's counsel questioned prospective juror Deloris Gomez, a business office supervisor at Cook County Hospital's outpatient orthopedic clinic. App. 32-33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowledged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experience would not affect her ability to be impartial. After questioning Gomez, Rivera's counsel sought to use a peremptory challenge to excuse her. Id., at 33. At that point in the jury's selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West 2006). Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34-36. Under Batson v. Kentucky, 476 U. S. 79 (1986), and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. Without specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera's counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was "pulled in two different ways" because Gomez had "some kind of Hispanic connection given her name." App. 34. At that point, the judge interjected that Gomez "appears to be an African American"--the second "African American female" the defense had struck. Id., at 34-35. Dissatisfied with counsel's proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further. After asking Gomez additional questions about her work at the hospital, Rivera's counsel renewed his challenge. Counsel observed, outside the jury's presence, that most of the jurors already seated were women. Counsel said he hoped to "get some impact from possibly other men in the case." Id., at 39. The court reaffirmed its earlier ruling, and Gomez was seated on the jury. Rivera's case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. A divided panel of the Appellate Court of Illinois rejected Rivera's challenge to the trial judge's Batson ruling and affirmed his conviction. 348 Ill. App. 3d 168, 810 N. E. 2d 129 (2004). The Supreme Court of Illinois accepted Rivera's petition for leave to appeal and remanded for further proceedings. 221 Ill. 2d 481, 852 N. E. 2d 771 (2006). A trial judge, the court held, may raise a Batson issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his Batson ruling and, in particular, to clarify whether the alleged discrimination was on the basis of race, sex, or both. 221 Ill. 2d, at 515-516, 852 N. E. 2d, at 791. On remand, the trial judge stated that prima facie evidence of sex discrimination — namely, counsel's two prior challenges to women and "the nature of [counsel's] questions"--had prompted him to raise the Batson issue. App. 136. Counsel's stated reasons for challenging Gomez, the judge reported, convinced him that that "there had been a purposeful discrimination against Mrs. Gomez because of her gender." Id., at 137. The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge's assessment, it affirmed Rivera's conviction. 227 Ill. 2d 1, 879 N. E. 2d 876 (2007). The Illinois High Court concluded "that the record fails to support a prima facie case of discrimination of any kind." Id., at 15, 879 N. E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera's counsel, and next, in denying Rivera's peremptory challenge of Gomez. Ibid. Even so, the Illinois Supreme Court rejected Rivera's ultimate argument that the improper seating of Gomez ranked as "reversible error without a showing of prejudice." Id., at 16, 879 N. E. 2d, at 885 (quoting Swain v. Alabama, 380 U. S. 202, 219 (1965)). Citing this Court's guiding decisions, the Illinois court observed that "the Constitution does not confer a right to peremptory challenges." 227 Ill. 2d, at 17, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Although "peremptory challenges are 'one means of assuring the selection of a qualified and unbiased jury,' " the court explained, they are not "indispensable to a fair trial." 227 Ill. 2d, at 16, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Accordingly, the court held, the denial of Rivera's peremptory challenge did not qualify as a structural error requiring automatic reversal. See 227 Ill. 2d, at 19-20, 879 N. E. 2d, at 887 (citing Washington v. Recuenco, 548 U. S. 212, 218-219 (2006)). The court saw no indication that Rivera had been "tried before a biased jury, or even one biased juror." 227 Ill. 2d, at 20, 879 N. E. 2d, at 887. In that regard, the court stressed, Rivera did "not suggest that Gomez was subject to excusal for cause." Ibid. Relying on both federal and state precedents, the court proceeded to consider whether it was "clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error." Id., at 21, 879 N. E. 2d, at 887 (quoting Neder v. United States, 527 U. S. 1, 18 (1999)). After reviewing the trial record, the court concluded that Gomez's presence on the jury did not prejudice Rivera because "any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial." 227 Ill. 2d, at 26, 879 N. E. 2d, at 890. Having held the error harmless beyond a reasonable doubt, the court added that it "need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances." Id., at 27, 879 N. E. 2d, at 891. This comment, it appears, related to Rivera's arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law. We granted certiorari, 554 U. S. __ (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant's conviction as a matter of federal law. Compare Angus v. State, 695 N. W. 2d 109, 118 (Minn. 2005) (applying automatic reversal rule); State v. Vreen, 143 Wash. 2d 923, 927-932, 26 P. 3d 236, 238-240 (2001) (same), with People v. Bell, 473 Mich. 275, 292-299, 702 N. W. 2d 128, 138-141 (2005) (rejecting automatic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 227 Ill. 2d., at 15-27, 879 N. E. 2d, at 884-891 (case below). We now affirm the judgment of the Supreme Court of Illinois.II The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant's peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory challenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure "the constitutional end of an impartial jury and a fair trial." McCollum, 505 U. S., at 57. When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: the jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory challenges, because criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights. Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (although "the Constitution does not require States to grant appeals as of right to criminal defendants," States that provide such appeals "must comport with the demands of the Due Process and Equal Protection Clauses"). The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossible to ascertain how a properly constituted jury — here, one without juror Gomez — would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a matter of federal law. Rivera's arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws. As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e.g., Martinez-Salazar, 528 U. S., at 311. We have characterized peremptory challenges as "a creature of statute," Ross v. Oklahoma, 487 U. S. 81, 89 (1988), and have made clear that a State may decline to offer them at all. McCollum, 505 U. S., at 57. See also Holland v. Illinois, 493 U. S. 474, 482 (1990) (dismissing the notion "that the requirement of an 'impartial jury' impliedly compels peremptory challenges"). When States provide peremptory challenges (as all do in some form), they confer a benefit "beyond the minimum requirements of fair [jury] selection," Frazier v. United States, 335 U. S. 497, 506 (1948), and thus retain discretion to design and implement their own systems, Ross, 487 U. S., at 89.1 Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. "[A] mere error of state law," we have noted, "is not a denial of due process." Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U. S. 62, 67, 72-73 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but "the fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U. S. 554, 563-564 (1967). The trial judge's refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in Ross is instructive. Ross, a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court's erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court's error, we acknowledged, "may have resulted in a jury panel different from that which would otherwise have decided [Ross's] case." 487 U. S., at 87. But because no member of the jury as finally composed was removable for cause, we found no violation of Ross's Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. Id., at 86-91. We encountered a similar situation in Martinez-Salazar and reached the same conclusion. Martinez-Salazar, who was tried in federal court, was entitled to exercise peremptory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court's erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. "[A] principal reason for peremptories," we explained, is "to help secure the constitutional guarantee of trial by an impartial jury." 528 U. S., at 316. Having "received precisely what federal law provided," and having been tried "by a jury on which no biased juror sat," Martinez-Salazar could not "tenably assert any violation of his ... right to due process." Id., at 307, 317. Rivera's efforts to distinguish Ross and Martinez-Salazar are unavailing. First, Rivera observes, the defendants in Ross and Martinez-Salazar did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person — Gomez — whom he perceived to be unfavorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in Ross and Martinez-Salazar, Rivera's jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera's attempt to exercise a peremptory strike against her. See, supra, at 3. We reject the notion that a juror is constitutionally disqualified whenever she is aware that a party has challenged her. Were the rule otherwise, a party could circumvent Batson by insisting in open court that a trial court dismiss a juror even though the party's peremptory challenge was discriminatory. Or a party could obtain a juror's dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results. Second, it is not constitutionally significant that the seating of Gomez over Rivera's peremptory challenge was at odds with state law. The defendants in Ross and Martinez-Salazar, Rivera emphasizes, were not denied their peremptory-challenge rights under applicable law — state law in Ross and the Federal Rules of Criminal Procedure in Martinez-Salazar. But as we have already explained, supra, at 7-8, errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez-Salazar, 528 U. S., at 316; Ross, 487 U. S., at 91, n. 5. Rather, the trial judge's conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of our Batson-related precedents. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant's discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff. Rivera insists that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, 380 U. S. 202, which suggested that "[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice." Id., at 219. We disavowed this statement in Martinez-Salazar, observing, albeit in dicta, "that the oft-quoted language in Swain was not only unnecessary to the decision in that case ... but was founded on a series of our early cases decided long before the adoption of harmless-error review." 528 U. S., at 317, n. 4. As our recent decisions make clear, we typically designate an error as "structural," therefore "requir[ing] automatic reversal," only when "the error 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Recuenco, 548 U. S., at 218-219 (quoting Neder, 527 U. S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here, constitute an error of that character. The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Batson, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it "violates a defendant's right to equal protection," "unconstitutionally discriminate[s] against the excluded juror," and "undermine[s] public confidence in the fairness of our system of justice." 476 U. S., at 86, 87. Similarly, dismissal of a juror in violation of Witherspoon v. Illinois, 391 U. S. 510 (1968),2 we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U. S. 648 (1987). See also Gomez v. United States, 490 U. S. 858, 876 (1989) ("Among those basic fair trial rights that can never be treated as harmless is a defendant's right to an impartial adjudicator, be it judge or jury." (internal quotation marks omitted)). A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e.g., Nguyen v. United States, 539 U. S. 69 (2003); Wingo v. Wedding, 418 U. S. 461 (1974). Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal's composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court's mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law. In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense.* * * For the reasons stated, the judgment of the Supreme Court of Illinois isAffirmed.FOOTNOTESFootnote 1 See Dept. of Justice, Bureau of Justice Statistics, State Court Organization 2004, pp. 228-232 (2006) (Table 41), http://www.ojp.usdoj. gov/bjs/pub/pdf/sco04.pdf (as visited Mar. 27, 2009, and available in Clerk of Court's case file) (detailing peremptory challenge rules by State).Footnote 2 Under Witherspoon v. Illinois, 391 U. S. 510 (1968), "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id., at 522. |
0 | During a trial in a Federal District Court in which petitioner was convicted by a jury of violating the federal wagering tax law, the prosecutor asked two witnesses questions concerning their relationship with petitioner. Refusal of these witnesses to answer some of the questions, based on their privilege against self-incrimination, was sustained. Counsel for the witnesses had previously stated that the witnesses would claim their privilege against self-incrimination if asked about wagering violations. The judge instructed the jury that no inference should be drawn against petitioner from these refusals to testify, "unless it would be a logical inference that would appeal to you as having a direct bearing upon the defendant's guilt," and petitioner's counsel made no objection to this instruction. Held: 1. In the light of the entire record in this case, no reversible error was committed when the prosecutor asked the witnesses questions as to which their plea of privilege against self-incrimination was sustained. Pp. 185-190. 2. Even if the instruction on this subject was erroneous, it was not a plain error or defect "affecting substantial rights," within the meaning of Federal Rule of Criminal Procedure 52 (b), and it did not constitute reversible error. Pp. 190-191. 301 F.2d 314, affirmed.John H. FitzGerald argued the cause and filed a brief for petitioner.Stephen J. Pollak argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky. MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was convicted by a jury on two counts of violating the federal wagering tax law, 4411 and 4412 of the Internal Revenue Code of 1954, 26 U.S.C. 4411, 4412. His conviction was affirmed by the Court of Appeals for the First Circuit, 301 F.2d 314. The petitioner contends that his conviction should have been reversed because at his trial the prosecutor was permitted to ask two witnesses incriminating questions concerning their relationship with the petitioner, with the knowledge that the witnesses would invoke their privilege against self-incrimination. We granted certiorari to resolve an asserted conflict with decisions in other circuits. .The theory of the prosecution's case was that the petitioner had operated a small gambling ring in Chelsea, Massachusetts. His method of operation, according to the Government's theory, was to visit several neighborhood stores at regular times each day for the purpose of collecting betting receipts and paying off winning bets. One of the shops he visited was a variety store owned by Irving and Annette Kahn.Informations charging violations of the federal wagering tax laws were filed against the petitioner and the Kahns on the same day. All three were represented by the same lawyer, John H. Fitzgerald, and all three pleaded not guilty. On the day of the petitioner's trial, the Kahns changed their pleas to guilty. Because they had previously told government investigators that the petitioner had collected the wagers made in their store and had personally settled accounts with them, the Kahns were subpoenaed to appear at the petitioner's trial.In his opening statement to the jury, the prosecuting attorney stated that he had reason to believe "a husband and wife" would testify against the petitioner. Upon the completion of the opening statement, Mr. Fitzgerald approached the bench, and the following colloquy took place: "MR. FITZGERALD: Your Honor, it is my understanding that the United States Attorney is going to attempt to use the Kahns as witnesses. "Now, keeping in mind that they are defendants, that they are entitled not to testify in their own case - "The COURT: They have pleaded guilty. "MR. FITZGERALD: I know that, your Honor, but still I didn't waive any Constitutional privileges in their behalf. "The COURT: I think the law is that they have no Constitutional privileges after they have pleaded. "MR. FITZGERALD: Your Honor, further that they are under investigation by the Internal Revenue Department as far as their income taxes are concerned, and everything else. "The COURT: Well, I haven't seen them take the stand yet, and if they claim the Fifth, I will rule on it then." After brief testimony by the first government witness, the United States called Annette Kahn. Mr. Fitzgerald repeated his objection for the record, but made no further arguments.1 Mrs. Kahn then testified to her name, her address, the ownership of the store, and her acquaintance with the petitioner. She refused to answer whether she and her husband had "some type of business relationship" with the petitioner. An extended colloquy at the bench ensued. The court eventually concluded that Mrs. Kahn's plea of guilty to the charge of engaging in the business of accepting wagers deprived her of the right to refuse to testify about her own gambling activity. But the court also ruled that she did not have to testify about any dealings with third persons since she was still, at least theoretically, subject to prosecution for conspiracy, or possibly bribery. Mr. Fitzgerald made no new objections or arguments during this colloquy. To the contrary, he appeared to acquiesce in the questioning of Mrs. Kahn in open court once he had managed to work out a convenient means for advising her when to assert her privilege against self-incrimination.2 The questioning of Mrs. Kahn was resumed after a brief recess. The prosecuting attorney began a line of questioning designed to determine whether Mrs. Kahn had known of the gambling tax requirement before the date of her arrest. Mr. Fitzgerald objected, on the ground that the questions were not material. Another conference at the bench was held, in which the prosecuting attorney explained that his purpose was to show that Mrs. Kahn was not in danger of a conspiracy charge. The court sustained Mr. Fitzgerald's objection to the materiality of the questions. The interrogation was then discontinued. After another recess, the Government resumed the presentation of its case by calling its other witnesses. Their testimony established the following case for the prosecution: The petitioner had been under surveillance by the government agents for one month. They had observed him following the same route twice a day, stopping for a few minutes in each of several variety and cigar stores. During the petitioner's afternoon round, the pockets in his coat became progressively more bulging, inferentially with material gathered in each of the stores. Petitioner returned home with the material. No persons were seen to enter his home between his arrival after the afternoon round and his departure the next morning for the morning round. Expert testimony was introduced showing that the petitioner's activities were consistent with those of a principal in a gambling operation. The afternoon visits during which his pockets became filled, it was testified, indicated a pick-up of the day's betting slips, and the morning visits would fit a pattern of "setting-up" the store owners to pay off the previous day's winning bets. The absence of any apparent contact with other persons after the petitioner's afternoon round would indicate that he himself was acting as banker for the enterprise, and was not passing the money on to another principal. The final ingredient of the Government's case was certain material found during a search of the petitioner's home. This consisted of "slips of number pool wagers," "daily double horse bet slips," and over $1,000 cash in bills of small denominations. The gambling slips were identified by experts as those normally held by the "bookie" rather than by the bettor.One of the key issues which developed during this part of the case was the question of whether the places regularly visited by the petitioner were, in fact, known gambling establishments. The court sustained objections by Mr. Fitzgerald to such testimony by government agents, on the ground that the agents could not testify to events observed when the petitioner was not present.The Government then called Irving Kahn to the stand. No objection was made. Mr. Kahn testified voluntarily that he owned the store in question, and that he was acquainted with the petitioner. After being directed to answer by the court, he testified that he had dealings with the petitioner. And, when a second claim of privilege was overruled, he also testified that he had accepted wagers in his store. In the questioning which followed, the witness testified that the petitioner did come to his store "a couple of times a week," but denied that the petitioner came every day in the morning and afternoon.In the course of this interrogation the witness was asked a total of only four questions to which his refusal to answer was sustained.3 At no time during this questioning did Mr. Fitzgerald object to the questions on behalf of the petitioner, nor did he request any instructions regarding the inferences the jury might draw from these refusals to answer. Indeed, counsel attempted in his closing argument to utilize that part of Irving Kahn's testimony which had contradicted the Government's evidence about the regularity of the petitioner's visits. The closing arguments for the Government contained no references to the Kahns' refusal to answer, and the jury was not told that the Kahns had been arrested or charged together with the petitioner. The court's instructions to the jury contained the following statement with regard to the Kahns' testimony: "Nor should any inference be drawn against him because the Kahns refused to testify, unless it would be a logical inference that would appeal to you as having a direct bearing upon the defendant's guilt." Mr. Fitzgerald made no objection whatever to this part of the instructions.In turning to the petitioner's argument that his conviction must be set aside because of the circumstances described, we emphasize at the outset what this case does not involve. No constitutional issues of any kind are presented. The petitioner does not claim any infringement of his Fifth Amendment privilege against self-incrimination.4 He does not contend that the Kahns were in any way prejudiced by their assertion of this constitutional privilege.5 All that this case involves, in short, is a claim of evidentiary trial error.The petitioner's principal contention is that reversible error was committed in permitting the Government to question the Kahns after it was known that they were going to claim their privilege not to incriminate themselves. It is said that when a witness is asked whether he participated in criminal activity with the defendant, a refusal to answer based on the privilege against self-incrimination tends to imply to the jury that a truthful answer would be in the affirmative. This inference, the petitioner argues, cannot properly be used as evidence against a criminal defendant. To support this argument, the petitioner relies on dicta in several federal cases and upon the decision in United States v. Maloney, 262 F.2d 535, in which the Court of Appeals for the Second Circuit said, "Such refusals [to testify] have been uniformly held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive." Id., at 537.6 None of the several decisions dealing with this question suggests that reversible error is invariably committed whenever a witness claims his privilege not to answer. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, supra. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government's closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 267 F.2d 212. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government's chief witness. 262 F.2d, at 536-537. On the other hand, courts have failed to find reversible error when such episodes were "no more than minor lapses through a long trial." United States v. Hiss, 185 F.2d 822, 832 (C. A. 2d Cir.). See also United States v. Amadio, 215 F.2d 605, 614 (C. A. 7th Cir.). And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error.7 The petitioner appears to contend that error was committed under both theories. He stresses the fact that the prosecutor had advance notice of the Kahns' intention to invoke the Fifth Amendment, but questioned them nevertheless. He also argues that the inferences from the Kahns' refusals to testify were crucial to the Government's case, pointing out that the rest of the Government's evidence against the petitioner was entirely circumstantial.We need not pass upon the correctness of the several lower court decisions upon which the petitioner relies,8 for we think that even within the basic rationale of those cases reversible error was not committed in this case. In the first place, the record does not support any inference of prosecutorial misconduct. It is true, of course, that Mr. Fitzgerald announced that the Kahns would invoke their testimonial privilege if questioned. But certainly the prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous. In this case, the prosecutor initially did not believe that the Kahns could properly invoke their privilege against self-incrimination, reasoning with some justification that their plea of guilty to the gambling charge would erase any testimonial privileges as to that conduct. His view of the law was supported by substantial authority, cf. Reina v. United States, , and was in fact upheld by the trial judge. Although it was later ruled that the guilty plea did not render all of the Kahns' conduct immune from further prosecution, thus making testimony as to that conduct privileged, there remained an independent and quite proper reason to call the Kahns as witnesses. Both Mr. and Mrs. Kahn possessed nonprivileged information that could be used to corroborate the Government's case. They could, and did, testify that they knew the petitioner, that he did frequently visit their variety store, and that they themselves had engaged in accepting wagers. The Government had a right to put this evidence before the jury.Moreover, the bulk of Mrs. Kahn's interrogation, including the only question involving privileged information, occurred before the court ruled that she had a limited testimonial privilege. Although Mr. Kahn was called to the stand somewhat later, there had developed, at that time, still another clearly permissible reason for calling him. The court's rulings during the questioning of the intervening witnesses had prevented the Government from introducing most of the evidence it had planned to use to show that the stores on the petitioner's daily route were engaged in gambling. Mr. Kahn had pleaded guilty to accepting wagers, and under the District Court's prior ruling his testimony that he had accepted wagers in his store was clearly not privileged. He did so testify, after the court directed him to answer. In the course of eliciting this and other relevant testimony, the prosecutor asked only four questions held to be privileged.We cannot find that these few lapses, when viewed in the context of the entire trial, amounted to planned or deliberate attempts by the Government to make capital out of witnesses' refusals to testify. We are particularly reluctant to fasten such motives on the Government's conduct when, as here, defense counsel not only failed to object on behalf of the defendant, but in many instances actually acquiesced in the procedure as soon as the rights of the witnesses were secured.Nor can we find that the few invocations of privilege by the Kahns were of such significance in the trial that they constituted reversible error even in the absence of prosecutorial misconduct. The effect of these questions was minimized by the lengthy nonprivileged testimony which the Kahns gave. They testified about the conduct of gambling operations in their store, as well as their general association with the petitioner. Once these facts were admitted by the Kahns themselves, after government agents had testified to the petitioner's daily visits, a natural and completely permissible inference could be drawn linking the petitioner's visits with the admitted gambling operation. Thus the present case is not one, like Maloney, in which a witness' refusal to testify is the only source, or even the chief source, of the inference that the witness engaged in criminal activity with the defendant. In this case the few claims of testimonial privilege were at most cumulative support for an inference already well established by the nonprivileged portion of the witness' testimony. It should be borne in mind that nothing in this case presents the issue whether the petitioner would have been entitled to instructions or other curative devices9 if he had asked for them. No such requests were ever made. Far from it, Mr. Fitzgerald impliedly accepted the Kahns' testimony and attempted to use it on behalf of the petitioner in his argument to the jury. The petitioner would have us hold that even in these circumstances the court committed reversible error because it did not, sua sponte, take some affirmative action. We see no reason to require such extravagant protection against errors which were not obviously prejudicial and which the petitioner himself appeared to disregard.10 There remains for consideration a question concerning the correctness of the court's instruction on the subject of the Kahns' refusals to testify. This issue was nowhere mentioned in the petition for certiorari in this Court, and under our rules it is not before us.11 Even if it were, we could not find that the instruction amounted to reversible error on the facts of this case. No objection was ever made to this instruction, even though counsel for the petitioner did object to other aspects of the charge. Thus, we are not concerned with whether the instruction was right, but only whether, assuming it was wrong, it was a plain error or defect "affecting substantial rights" under Rule 52 (b) of the Federal Rules of Criminal Procedure.12 What has been said concerning the very limited effect of any inferences arising from the Kahns' refusals to testify makes it clear that this brief passage in the charge could not have affected any substantial rights of the petitioner. Affirmed. |
9 | Appellants, residents of East Germany, are the heirs of an American citizen who died intestate in Oregon, leaving personal property. Appellees include members of the State Land Board who petitioned the Oregon probate court for the escheat of the personalty pursuant to Ore. Rev. Stat. 111.070. That section provides for escheat where a nonresident alien claims personalty unless (1) there is a reciprocal right of a United States citizen to take property on the same terms as the citizen of a foreign nation, (2) American citizens have the right to receive payment here of funds from estates in the foreign country, and (3) foreign heirs have the right to receive the proceeds of Oregon estates without confiscation. The Oregon Supreme Court held that appellants could not take the personalty, because the reciprocity required by 111.070 was not present. Held: As applied by Oregon, each of the three provisions of 111.070 involves the State in foreign affairs and international relations, matters which the Constitution entrusts solely to the Federal Government. Clark v. Allen, , distinguished. Pp. 432-441. 243 Ore. 567, 592, 412 P.2d 781, 415 P.2d 15, reversed.Peter A. Schwabe, Sr., argued the cause for appellants. With him on the briefs was Peter A. Schwabe, Jr.Wayne M. Thompson, Assistant Attorney General of Oregon, argued the cause for appellee State Land Board of Oregon. With him on the brief was Robert Y. Thornton, Attorney General.Briefs of amici curiae were filed by Solicitor General Marshall, Acting Assistant Attorney General Eardley, John S. Martin, Jr., and Alan S. Rosenthal for the United States, and by Edward Mosk for Slaff, Mosk & Rudman. MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case concerns the disposition of the estate of a resident of Oregon who died there intestate in 1962. Appellants are decedent's sole heirs and they are residents of East Germany. Appellees include members of the State Land Board that petitioned the Oregon probate court for the escheat of the net proceeds of the estate under the provisions of Ore. Rev. Stat. 111.070 (1957),1 which provides for escheat in cases where a nonresident alien claims real or personal property unless three requirements are satisfied:(1) the existence of a reciprocal right of a United States citizen to take property on the same terms as a citizen or inhabitant of the foreign country; (2) the right of United States citizens to receive payment here of funds from estates in the foreign country; and(3) the right of the foreign heirs to receive the proceeds of Oregon estates "without confiscation."The Oregon Supreme Court held that the appellants could take the Oregon realty involved in the present case by reason of Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany2 (44 Stat. 2135) but that by reason of the same Article, as construed in Clark v. Allen, , they could not take the personalty. 243 Ore. 567, 592, 412 P.2d 781, 415 P.2d 15. We noted probable jurisdiction. . The Department of Justice, appearing as amicus curiae, submits that, although the 1923 Treaty is still in force, Clark v. Allen should be overruled insofar as it construed the personalty provision of Article IV. That portion of Article IV speaks of the rights of "[n]ationals of either High Contracting Party" to dispose of "their personal property of every kind within the territories of the other." That literal language and its long consistent construction, we held in Clark v. Allen, "does not cover personalty located in this country and which an American citizen undertakes to leave to German nationals." 331 U.S., at 516.We do not accept the invitation to re-examine our ruling in Clark v. Allen. For we conclude that the history and operation of this Oregon statute make clear that 111.070 is an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress. See Hines v. Davidowitz, .As already noted3 one of the conditions of inheritance under the Oregon statute requires "proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries," the burden being on the nonresident alien to establish that fact.This provision came into Oregon's law in 1951. Prior to that time the rights of aliens under the Oregon statute were defined in general terms of reciprocity,4 similar to the California Act which we had before us in Clark v. Allen, 331 U.S., at 506, n. 1.We held in Clark v. Allen that a general reciprocity clause did not on its face intrude on the federal domain. at 516-517. We noted that the California statute, then a recent enactment, would have only "some incidental or indirect effect in foreign countries." Id., at 517.5 Had that case appeared in the posture of the present one, a different result would have obtained. We were there concerned with the words of a statute on its face, not the manner of its application. State courts, of course, must frequently read, construe, and apply laws of foreign nations. It has never been seriously suggested that state courts are precluded from performing that function, albeit there is a remote possibility that any holding may disturb a foreign nation - whether the matter involves commercial cases, tort cases, or some other type of controversy. At the time Clark v. Allen was decided, the case seemed to involve no more than a routine reading of foreign laws. It now appears that in this reciprocity area under inheritance statutes, the probate courts of various States have launched inquiries into the type of governments that obtain in particular foreign nations - whether aliens under their law have enforceable rights, whether the so-called "rights" are merely dispensations turning upon the whim or caprice of government officials, whether the representation of consuls, ambassadors, and other representatives of foreign nations is credible or made in good faith, whether there is in the actual administration in the particular foreign system of law any element of confiscation.In a California case, involving a reciprocity provision, the United States made the following representation:"The operation and effect of the statute is inextricably enmeshed in international affairs and matters of foreign policy. The statute does not work disinheritance of, or affect ownership of property in California by, any group or class, but on the contrary operates in fields exclusively for, and preempted by, the United States; namely, the control of the international transmission of property, funds, and credits, and the capture of enemy property. The statute is not an inheritance statute, but a statute of confiscation and retaliation." In re Bevilacqua's Estate, 161 P.2d 589, 593 (Dist. Ct. App. Cal.), superseded by 31 Cal. 2d 580, 191 P.2d 752. In its brief amicus curiae, the Department of Justice states that: "The government does not ... contend that the application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations."The Government's acquiescence in the ruling of Clark v. Allen certainly does not justify extending the principle of that case, as we would be required to do here to uphold the Oregon statute as applied; for it has more than "some incidental or indirect effect in foreign countries," and its great potential for disruption or embarrassment makes us hesitate to place it in the category of a diplomatic bagatelle.As we read the decisions that followed in the wake of Clark v. Allen, we find that they radiate some of the attitudes of the "cold war," where the search is for the "democracy quotient" of a foreign regime as opposed to the Marxist theory.6 The Oregon statute introduces the concept of "confiscation," which is of course opposed to the Just Compensation Clause of the Fifth Amendment. And this has led into minute inquiries concerning the actual administration of foreign law, into the credibility of foreign diplomatic statements, and into speculation whether the fact that some received delivery of funds should "not preclude wonderment as to how many may have been denied `the right to receive'... ." See State Land Board v. Kolovrat, 220 Ore. 448, 461-462, 349 P.2d 255, 262, rev'd sub nom. Kolovrat v. Oregon, , on other grounds. That kind of state involvement in foreign affairs and international relations - matters which the Constitution entrusts solely to the Federal Government - is not sanctioned by Clark v. Allen. Yet such forbidden state activity has infected each of the three provisions of 111.070, as applied by Oregon.In State Land Board v. Pekarek, 234 Ore. 74, 378 P.2d 734, the Oregon Supreme Court in ruling against a Czech claimant because he had failed to prove the "benefit" requirement of subsection (1) (c) of the statute said:"Assuming, without deciding, that all of the evidence offered by the legatees was admissible, it can be given relatively little weight. The statements of Czechoslovakian officials must be judged in light of the interest which they had in the acquisition of funds for their government. Moreover, in judging the credibility of these witnesses we are entitled to take into consideration the fact that declarations of government officials in communist-controlled countries as to the state of affairs existing within their borders do not always comport with the actual facts." Id., at 83, 378 P.2d, at 738. Yet in State Land Board v. Schwabe, 240 Ore. 82, 400 P.2d 10, where the certificate of the Polish Ambassador was tendered against the claim that the inheritance would be confiscated abroad, the Oregon court, appraising the current attitude of Washington, D.C., toward Warsaw, accepted the certificate as true. Id., at 84, 400 P.2d, at 11.In State Land Board v. Rogers, 219 Ore. 233, 347 P.2d 57, the court held Bulgarian heirs had failed to prove the requirement of what is now (1) (b) of the reciprocity statute, the "right" of American heirs of Bulgarian decedents to get funds out of Bulgaria into the United States. Such transmission of funds required a license from the Bulgarian National Bank, but the court held the fact that licenses were regularly given insufficient, because they were issued only at the discretion or "whim" of the bank. Id., at 245, 347 P.2d, at 63.7 As one reads the Oregon decisions, it seems that foreign policy attitudes, the freezing or thawing of the "cold war," and the like are the real desiderata.8 Yet they of course are matters for the Federal Government, not for local probate courts.This is as true of (1) (a) of 111.070 as it is of (1) (b) and (1) (c). In Clostermann v. Schmidt, 215 Ore. 55, 332 P.2d 1036, the court - applying the predecessor of (1) (a) - held that not only must the foreign law give inheritance rights to Americans, but the political body making the law must have "membership in the family of nations" (id., at 65, 332 P.2d, at 1041), because the purpose of the Oregon provision was to serve as "an inducement to foreign nations to so frame the inheritance laws of their respective countries in a manner which would insure to Oregonians the same opportunities to inherit and take personal property abroad that they enjoy in the state of Oregon." Id., at 68, 332 P.2d, at 1042.In In re Estate of Krachler, 199 Ore. 448, 263 P.2d 769, the court observed that the phrase "reciprocal right" in what is now part (1) (a) meant a claim "that is enforceable by law." Id., at 455, 263 P.2d, at 773. Although certain provisions of the written law of Nazi Germany appeared to permit Americans to inherit, they created no "right," since Hitler had absolute dictatorial powers and could prescribe to German courts rules and procedures at variance with the general law. Bequests "`grossly opposed to sound sentiment of the people'" would not be given effect. Id., at 503, 263 P.2d, at 794.9 In short, it would seem that Oregon judges in construing 111.070 seek to ascertain whether "rights" protected by foreign law are the same "rights" that citizens of Oregon enjoy. If, as in the Rogers case, the alleged foreign "right" may be vindicated only through Communist-controlled state agencies, then there is no "right" of the type 111.070 requires. The same seems to be true if enforcement may require approval of a Fascist dictator, as in Krachler. The statute as construed seems to make unavoidable judicial criticism of nations established on a more authoritarian basis than our own.It seems inescapable that the type of probate law that Oregon enforces affects international relations in a persistent and subtle way. The practice of state courts in withholding remittances to legatees residing in Communist countries or in preventing them from assigning them is notorious.10 The several States, of course, have traditionally regulated the descent and distribution of estates. But those regulations must give way if they impair the effective exercise of the Nation's foreign policy. See Miller, The Corporation as a Private Government in the World Community, 46 Va. L. Rev. 1539, 1542-1549 (1960). Where those laws conflict with a treaty, they must bow to the superior federal policy. See Kolovrat v. Oregon, . Yet, even in absence of a treaty, a State's policy may disturb foreign relations. As we stated in Hines v. Davidowitz, supra, at 64: "Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government." Certainly a State could not deny admission to a traveler from East Germany nor bar its citizens from going there. Passenger Cases, 7 How. 283; cf. Crandall v. Nevada, 6 Wall. 35; Kent v. Dulles, . If there are to be such restraints, they must be provided by the Federal Government. The present Oregon law is not as gross an intrusion in the federal domain as those others might be. Yet, as we have said, it has a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.The Oregon law does, indeed, illustrate the dangers which are involved if each State, speaking through its probate courts, is permitted to establish its own foreign policy. Reversed.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. |
8 | The United States brought this suit in the District Court to enjoin alleged violations of the Sherman Antitrust Act. The defendants were the Far East Conference, a voluntary association, and its constituent members, steamship companies engaged in "outbound Far East trade." The agreement under which the Conference operated was approved by the predecessor of the Federal Maritime Board, exercising authority under the Shipping Act of 1916, as amended. Under this agreement the Conference established a dual system of rates, whereby shippers who agreed to use exclusively bottoms of Conference members paid one rate, while those who did not so bind themselves paid a fixed higher rate. This dual system of rates constituted the gravamen of the Government's suit. Held: 1. The case is initially within the exclusive jurisdiction of the Federal Maritime Board. United States Navigation Co. v. Cunard S. S. Co., . Pp. 573-576. (a) A different result from that reached in the Cunard case is not required by the fact that there a private shipper invoked the Antitrust Acts whereas here it is the Government. P. 576. (b) The United States is a "person" who under 22 of the Shipping Act may file a complaint with the Federal Maritime Board. P. 576. 2. Rather than order the case retained on the District Court docket pending action by the Board, this Court orders dismissal of the proceeding brought in the District Court. Pp. 576-577. 94 F. Supp. 900, reversed. In a suit brought by the United States to enjoin alleged violations of the Sherman Act, the District Court denied the defendants' motion to dismiss. 94 F. Supp. 900. This Court granted certiorari. . Reversed, p. 577. Elkan Turk argued the cause for the Far East Conference et al., petitioners. With him on the brief were John Milton and Seymour H. Kligler.John W. Davis argued the cause for the Isthmian Steamship Co., petitioner. With him on the brief was Josiah Stryker.J. Roger Wollenberg argued the cause for the United States. With him on the brief were Solicitor General Perlman and Assistant Attorney General Morison.Arthur M. Boal argued the cause for the Federal Maritime Board, respondent. With him on the brief were Francis S. Walker and George F. Galland.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a suit in the District Court for New Jersey to enjoin violations of the Sherman Law.1 26 Stat. 209, 15 U.S.C. 1 and 2. The defendants were the Far East Conference, a voluntary association, and its constituent members, steamship companies engaged in what is known as the "outbound Far East trade." The Conference was organized in 1922, and the Conference Agreement under which it operates was approved by the United States Shipping Board,2 exercising authority under the Shipping Act of 1916, as amended.3 Under this Agreement there has been established a dual system of rates, called the contract and noncontract rate system.4 Shippers who agreed to use exclusively bottoms of Conference members paid one rate; those who did not bind themselves by such exclusive patronage contract paid a fixed higher rate. Shippers who adhered to the exclusive patronage contract were not tied to a particular carrier; they were free to choose among Conference carriers. The Conference members, however, were obligated to supply facilities sufficient to handle freight destined for the Far East. This system of two levels of freight rates constituted the gravamen of the Government's suit.Admitting the dual-rate system, the defendants justified on the merits but moved that the complaint be dismissed on the ground that the nature of the issues required that resort must first be had to the Federal Maritime Board before a District Court could adjudicate the Government's complaint. The Board, as intervenor, joined in this motion. It was denied by the District Court, 94 F. Supp. 900, and we brought the case here, under 262 of the Judicial Code, 28 U.S.C. 1651 (a), because there are in issue important questions regarding the relation between the Sherman Law and the Shipping Act. . At the threshold we must decide whether, in a suit brought by the United States to enjoin a dual-rate system enforced in concert by steamship carriers engaged in foreign trade, a District Court can pass on the merits of the complaint before the Federal Maritime Board has passed upon the question. We see no reason to depart from United States Navigation Co. v. Cunard Steamship Co., . That case answers our problem. There a competing carrier invoked the Antitrust Acts for an injunction against a combination of carriers in the North Atlantic trade which were alleged to operate a dual-rate system similar to that here involved. The plaintiff had not previously challenged the offending practice before the United States Shipping Board, the predecessor in authority of the present Maritime Board. This Court sustained the two lower courts, 39 F.2d 204 (D.C. S. D. N. Y.) and 50 F.2d 83 (C. A. 2d Cir.), dismissing the bill because initial consideration by the Shipping Board of the circumstances in controversy had not been sought. After a detailed analysis of the provisions of the Shipping Act and their relation to the construction theretofore given to the Interstate Commerce Act, this was the conclusion: "The [Shipping] act is restrictive in its operation upon some of the activities of common carriers by water, and permissive in respect of others. Their business involves questions of an exceptional character, the solution of which may call for the exercise of a high degree of expert and technical knowledge. Whether a given agreement among such carriers should be held to contravene the act may depend upon a consideration of economic relations, of facts peculiar to the business or its history, of competitive conditions in respect of the shipping of foreign countries, and of other relevant circumstances, generally unfamiliar to a judicial tribunal, but well understood by an administrative body especially trained and experienced in the intricate and technical facts and usages of the shipping trade; and with which that body, consequently, is better able to deal. Compare Chicago Board of Trade v. United States, ; United States v. Hamburgh-American S. S. Line, 216 Fed. 971. "A comparison of the enumeration of wrongs charged in the bill with the provisions of the sections of the Shipping Act above outlined conclusively shows, without going into detail, that the allegations either constitute direct and basic charges of violations of these provisions or are so interrelated with such charges as to be in effect a component part of them; and the remedy is that afforded by the Shipping Act, which to that extent supersedes the antitrust laws. Compare Keogh v. Chicago & N. W. Ry. Co., supra , at p. 162. The matter, therefore, is within the exclusive preliminary jurisdiction of the Shipping Board. The scope and evident purpose of the Shipping Act, as in the case of the Interstate Commerce Act, are demonstrative of this conclusion." . The Court thus applied a principle, now firmly established, that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.It is significant that this mode of accommodating the complementary roles of courts and administrative agencies in the enforcement of law was originally applied in a situation where the face of the statute gave the Interstate Commerce Commission and the courts concurrent jurisdiction. "The pioneer work of Chief Justice White" in Texas & Pacific R. Co. v. Abilene Cotton Oil Co., , as his successor characterized itXXVI, was one of those creative judicial labors whereby modern administrative law is being developed as part of our traditional system of law. In this case we are merely applying the philosophy which was put in memorable words by Mr. Justice (as he then was) Stone: "... court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through coordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim." United States v. Morgan, . The sole distinction between the Cunard case and this is that there a private shipper invoked the Antitrust Acts and here it is the Government. This difference does not touch the factors that determined the Cunard case. The same considerations of administrative expertise apply, whoever initiates the action. The same Antitrust Laws and the same Shipping Act apply to the same dual-rate system. To the same extent they define the appropriate orbits of action as between court and Maritime Board.But the Government argues that it should not be forced to go first to the Board because the United States may not be deemed a "person" who under 22 of the Shipping Act may file a complaint with the Maritime Board.5 Surely the large question here in issue ought not to turn on such a debating point. It is almost frivolous to suggest that the Maritime Board would deny standing to the United States as a complainant. The Board has consistently treated the United States as a "person" within its rule for intervention. We ought not to dally longer with this objection, considering the fact that the United States, as a matter of common knowledge, is today one of the largest shippers in the Far East trade. The matter seems to be disposed of by United States v. Interstate Commerce Commission, et seq., involving similar provisions of the Interstate Commerce Act.Having concluded that initial submission to the Federal Maritime Board is required, we may either order the case retained on the District Court docket pending the Board's action, General American Tank Car Corp. v. El Dorado Terminal Co., ; El Dorado Oil Works v. United States, ; see United States v. Interstate Commerce Commission, supra, at 465, n. 12, or order dismissal of the proceeding brought in the District Court. As distinguished from the situation presented by the first El Dorado case, supra, which was a contract action raising only incidentally a question proper for initial administrative decision, the present case involves questions within the general scope of the Maritime Board's jurisdiction. Shipping Act of 1916, 14, 15, 39 Stat. 728, 733, 46 U.S.C. 812, 814. An order of the Board will be subject to review by a United States Court of Appeals, with opportunity for further review in this Court on writ of certiorari. Pub. L. No. 901, 81st Cong., 2d Sess., 2, 10, 64 Stat. 1129, 1132. If the Board's order is favorable to the United States, it can be enforced by process of the District Court on the Attorney General's application. 39 Stat. 728, 737, 46 U.S.C. 828. We believe that no purpose will here be served to hold the present action in abeyance in the District Court while the proceeding before the Board and subsequent judicial review or enforcement of its order are being pursued. A similar suit is easily initiated later, if appropriate. Business-like procedure counsels that the Government's complaint should now be dismissed, as was the complaint in United States Navigation Co. v. Cunard Steamship Co., supra.The judgment of the District Court must be Reversed.MR. JUSTICE CLARK took no part in the consideration or decision of this case. |
0 | Absent circumstances comparable in significance to those existing in Ham v. South Carolina, , examination of veniremen during voir dire about racial prejudice is held not constitutionally required. In the instant case, which involved the prosecution of respondent, a Negro, for violent crimes against a white security guard, respondent did not show such circumstances. There was thus no error of constitutional dimensions when the state trial judge questioned veniremen about general bias or prejudice but declined to question them specifically about racial prejudice. Pp. 594-598. 508 F.2d 754, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. WHITE, J., filed a statement concurring in the result, post, p. 598. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 599. STEVENS, J., took no part in the consideration or decision of the case.Barbara A. H. Smith, Assistant Attorney General of Massachusetts, argued the cause for petitioners. With her on the briefs were Francis X. Bellotti, Attorney General, John J. Irwin, Jr., and David A. Mills, Assistant Attorneys General.Michael G. West, by appointment of the Court, , argued the cause and filed a brief for respondent.MR. JUSTICE POWELL delivered the opinion of the Court.Respondent is a Negro convicted in a state court of violent crimes against a white security guard. The trial judge denied respondent's motion that a question specifically directed to racial prejudice be asked during voir dire in addition to customary questions directed to general bias or prejudice. The narrow issue is whether, under our recent decision in Ham v. South Carolina, , respondent was constitutionally entitled to require the asking of a question specifically directed to racial prejudice. The broader issue presented is whether Ham announced a requirement applicable whenever there may be a confrontation in a criminal trial between persons of different races or different ethnic origins. We answer both of these questions in the negative.IRespondent, James Ross, Jr., was tried in a Massachusetts court with two other Negroes for armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The victim of the alleged crimes was a white man employed by Boston University as a uniformed security guard. The voir dire of prospective jurors was to be conducted by the court, which was required by statute to inquire generally into prejudice. See n. 3, infra. Each defendant, represented by separate counsel, made a written motion that the prospective jurors also be questioned specifically about racial prejudice.1 Each defendant also moved that the veniremen be asked about affiliations with law enforcement agencies.The trial judge consulted counsel for the defendants about their motions. After tentatively indicating that he "[felt] that no purpose would be accomplished by asking such questions in this instance," the judge invited the views of counsel: "THE COURT: ... I thought from something Mr. Donnelly [counsel for a codefendant] said, he might have wanted on the record something which was peculiar to this case, or peculiar to the circumstances which we are operating under here which perhaps he didn't want to say in open court. "Is there anything peculiar about it, Mr. Donnelly? "Mr. DONNELLY: No, just the fact that the victim is white, and the defendants are black. "THE COURT: This, unfortunately, is a problem with us, and all we can hope and pray for is that the jurors and all of them take their oaths seriously and understand the spirit of their oath and understand the spirit of what the Court says to them - this Judge anyway - and I am sure all Judges of this Court - would take the time to impress upon them before, during, and after the trial, and before their verdict, that their oath means just what it says, that they are to decide the case on the evidence, with no extraneous considerations. "I believe that that is the best that can be done with respect to the problems which - as I said, I regard as extremely important ... ." App. 29-30. Further discussion persuaded the judge that a question about law enforcement affiliations should be asked because of the victim's status as a security guard.2 But he adhered to his decision not to pose a question directed specifically to racial prejudice.The voir dire of five panels of prospective jurors then commenced. The trial judge briefly familiarized each panel with the facts of the case, omitting any reference to racial matters. He then explained to the panel that the clerk would ask a general question about impartiality and a question about affiliations with law enforcement agencies.3 Consistently with his announced intention to "impress upon [the jurors] ... that they are to decide the case on the evidence, with no extraneous considerations," the judge preceded the questioning of the panel with an extended discussion of the obligations of jurors.4 After these remarks the clerk posed the questions indicated to the panel. Panelists answering a question affirmatively were questioned individually at the bench by the judge, in the presence of counsel. This procedure led to the excusing of 18 veniremen for cause on grounds of prejudice, including one panelist who admitted a racial bias.5 The jury eventually impaneled convicted each defendant of all counts. On direct appeal Ross contended that his federal constitutional rights were violated by the denial of his request that prospective jurors be questioned specifically about racial prejudice. This contention was rejected by the Supreme Judicial Court of Massachusetts, Commonwealth v. Ross, 361 Mass. 665, 282 N. E. 2d 70 (1972), and Ross sought a writ of certiorari. While his petition was pending, we held in Ham that a trial court's failure on request to question veniremen specifically about racial prejudice had denied Ham due process of law. We granted Ross' petition for certiorari and remanded for reconsideration in light of Ham, ; the Supreme Judicial Court again affirmed Ross' conviction. Commonwealth v. Ross, 363 Mass. 665, 296 N. E. 2d 810 (1973). The court reasoned that Ham turned on the need for questions about racial prejudice presented by its facts and did not announce "a new broad constitutional principle requiring that [such] questions ... be put to prospective jurors in all State criminal trials when the defendant is black... ." Id., at 671, 296 N. E. 2d, at 815. Ross again sought certiorari, but the writ was denied. .In the present case Ross renewed his contention on collateral attack in federal habeas corpus. Relying on Ham, the District Court granted a writ of habeas corpus, and the Court of Appeals for the First Circuit affirmed. 508 F.2d 754 (1974). The Court of Appeals assumed that Ham turned on its facts. But it held that the facts of Ross' case, involving "violence against a white" with "a status close to that of a police officer," presented a need for specific questioning about racial prejudice similar to that in Ham. Id., at 756. We think the Court of Appeals read Ham too broadly.IIThe Constitution does not always entitle a defendant to have questions posed during voir dire specifically directed to matters that conceivably might prejudice veniremen against him. Ham, supra, at 527-528. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Connors v. United States, ; see Ham, supra, at 527-528; Aldridge v. United States, . This is so because the "determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge." Rideau v. Louisiana, (Clark, J., dissenting). Thus, the State's obligation to the defendant to impanel an impartial jury6 generally can be satisfied by less than an inquiry into a specific prejudice feared by the defendant. Ham, supra, at 527-528.In Ham, however, we recognized that some cases may present circumstances in which an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during voir dire. Ham involved a Negro tried in South Carolina courts for possession of marihuana. He was well known in the locale of his trial as a civil rights activist, and his defense was that law enforcement officials had framed him on the narcotics charge to "get him" for those activities. Despite the circumstances, the trial judge denied Ham's request that the court-conducted voir dire include questions specifically directed to racial prejudice.7 We reversed the judgment of conviction because "the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the [defendant] be permitted to have the jurors interrogated [during voir dire] on the issue of racial bias" 409 U.S., at 527.By its terms Ham did not announce a requirement of universal applicability.8 Rather; it reflected an assessment of whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be as "indifferent as [they stand] unsworne." Coke on Littleton 155b (19th ed. 1832). In this approach Ham was consistent with other determinations by this Court that a State had denied a defendant due process by failing to impanel an impartial jury. See Irvin v. Dowd, ; Rideau v. Louisiana, supra; Turner v. Louisiana, ; cf. Avery v. Georgia, .The circumstances in Ham strongly suggested the need for voir dire to include specific questioning about racial prejudice. Ham's defense was that he had been framed because of his civil rights activities. His prominence in the community as a civil rights activist, if not already known to veniremen, inevitably would have been revealed to the members of the jury in the course of his presentation of that defense. Racial issues therefore were inextricably bound up with the conduct of the trial. Further, Ham's reputation as a civil rights activist and the defense he interposed were likely to intensify any prejudice that individual members of the jury might harbor. In such circumstances we deemed a voir dire that included questioning specifically directed to racial prejudice, when sought by Ham, necessary to meet the constitutional requirement that an impartial jury be impaneled.We do not agree with the Court of Appeals that the need to question veniremen specifically about racial prejudice also rose to constitutional dimensions in this case.9 The mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes was less likely to distort the trial than were the special factors involved in Ham. The victim's status as a security officer, also relied upon by the Court of Appeals, was cited by respective defense counsel primarily as a separate source of prejudice, not as an aggravating racial factor, see n. 2, supra, and the trial judge dealt with it by his question about law-enforcement affiliations.10 The circumstances thus did not suggest a significant likelihood that racial prejudice might infect Ross' trial. This was made clear to the trial judge when Ross was unable to support his motion concerning voir dire by pointing to racial factors such as existed in Ham or others of comparable significance. In these circumstances, the trial judge acted within the Constitution in determining that the demands of due process could be satisfied by his more generalized but thorough inquiry into the impartiality of the veniremen. Accordingly, the judgment is Reversed.MR. JUSTICE STEVENS took no part in the consideration or decision of this case. |
2 | Appellants are members of the Orthodox Jewish Faith, which requires the closing of their places of business and total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. As merchants engaged in the retail sale of clothing and home furnishings in Philadelphia, they sued to enjoin enforcement of a 1959 Pennsylvania criminal statute which forbade the retail sale on Sundays of those commodities and other specified commodities. They claimed that the statute violated the Equal Protection Clause of the Fourteenth Amendment and constituted a law respecting an establishment of religion and that it interfered with the free exercise of their religion by imposing serious economic disadvantages upon them, if they adhere to the observance of their Sabbath, and that it would operate so as to hinder the Orthodox Jewish Faith in gaining new members. Held: The statute does not violate the Equal Protection Clause of the Fourteenth Amendment nor constitute a law respecting an establishment of religion. Two Guys from Harrison-Allentown, Inc., v. McGinley, ante, p. 582; and it does not prohibit the free exercise of appellants' religion, within the meaning of the First Amendment, made applicable to the States by the Fourteenth Amendment. Pp. 600-610. 184 F. Supp. 352, affirmed.Theodore R. Mann argued the cause for appellants. With him on the brief were Marvin Garfinkel and Stephen B. Narin.David Berger argued the cause and filed a brief for appellees.Arthur Littleton, Benjamin M. Quigg, Jr. and Russell C. Dilks filed a brief for the Pennsylvania Retailers' Association, intervening defendant-appellee. Briefs of amici curiae, urging affirmance, were filed by S. G. Lippman for the Retail Clerks International Association, AFL-CIO, and George C. Warner for the National Retail Merchants Association.Leo Pfeffer, Lewis H. Weinstein, Shad Polier and Samuel Lawrence Brennglass filed a brief for the Synagogue Council of America et al., as amici curiae, urging reversal.MR. CHIEF JUSTICE WARREN announced the judgment of the Court and an opinion in which MR. JUSTICE BLACK, MR. JUSTICE CLARK, and MR. JUSTICE WHITTAKER concur.This case concerns the constitutional validity of the application to appellants of the Pennsylvania criminal statute,1 enacted in 1959, which proscribes the Sunday retail sale of certain enumerated commodities. Among the questions presented are whether the statute is a law respecting an establishment of religion and whether the statute violates equal protection. Since both of these questions, in reference to this very statute, have already been answered in the negative, Two Guys from Harrison-Allentown, Inc., v. McGinley, ante, p. 582, and since appellants present nothing new regarding them, they need not be considered here. Thus, the only question for consideration is whether the statute interferes with the free exercise of appellants' religion.Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription of the statute in issue. Each of the appellants is a member of the Orthodox Jewish faith. which requires the closing of their places of business and a total abstention from all manner of work from nightfall each Friday until nightfall each Saturday. They instituted a suit in the court below seeking a permanent injunction against the enforcement of the 1959 statute. Their complaint, as amended, alleged that appellants had previously kept their places of business open on Sunday; that each of appellants had done a substantial amount of business on Sunday, compensating somewhat for their closing on Saturday; that Sunday closing will result in impairing the ability of all appellants to earn a livelihood and will render appellant Braunfeld unable to continue in his business, thereby losing his capital investment; that the statute is unconstitutional for the reasons stated above.A three-judge court was properly convened and it dismissed the complaint on the authority of the Two Guys From Harrison case. 184 F. Supp. 352. On appeal brought under 28 U.S.C. 1253, we noted probable jurisdiction, .Appellants contend that the enforcement against them of the Pennsylvania statute will prohibit the free exercise of their religion because, due to the statute's compulsion to close on Sunday, appellants will suffer substantial economic loss, to the benefit of their non-Sabbatarian competitors, if appellants also continue their Sabbath observance by closing their businesses on Saturday; that this result will either compel appellants to give up their Sabbath observance, a basic tenet of the Orthodox Jewish faith, or will put appellants at a serious economic disadvantage if they continue to adhere to their Sabbath. Appellants also assert that the statute will operate so as to hinder the Orthodox Jewish faith in gaining new adherents. And the corollary to these arguments is that if the free exercise of appellants' religion is impeded, that religion is being subjected to discriminatory treatment by the State.In McGowan v. Maryland, ante, at pp. 437-440, we noted the significance that this Court has attributed to the development of religious freedom in Virginia in determining the scope of the First Amendment's protection. We observed that when Virginia passed its Declaration of Rights in 1776, providing that "all men are equally entitled to the free exercise of religion." Virginia repealed its laws which in any way penalized "maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever." But Virginia retained its laws prohibiting Sunday labor.We also took cognizance, in McGowan, of the evolution of Sunday Closing Laws from wholly religious sanctions to legislation concerned with the establishment of a day of community tranquillity, respite and recreation, a day when the atmosphere is one of calm and relaxation rather than one of commercialism, as it is during the other six days of the week. We reviewed the still growing state preoccupation with improving the health, safety, morals and general well-being of our citizens.Concededly, appellants and all other persons who wish to work on Sunday will be burdened economically by the State's day of rest mandate; and appellants point out that their religion requires them to refrain from work on Saturday as well. Our inquiry then is whether, in these circumstances, the First and Fourteenth Amendments forbid application of the Sunday Closing Law to appellants.Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. Connecticut, ; Reynolds v. United States, . Thus, in West Virginia State Board of Education v. Barnette, , this Court held that state action compelling school children to salute the flag, on pain of expulsion from public school, was contrary to the First and Fourteenth Amendments when applied to those students whose religious beliefs forbade saluting a flag. But this is not the case at bar; the statute before us does not make criminal the holding of any religious belief or opinion, nor does it force anyone to embrace any religious belief or to say or believe anything in conflict with his religious tenets.However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions. Cantwell v. Connecticut, supra, at pp. 303-304, 306. As pointed out in Reynolds v. United States, supra, at p. 164, legislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion. This was articulated by Thomas Jefferson when he said: "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." (Emphasis added.) 8 Works of Thomas Jefferson 113.2 And, in the Barnette case, the Court was careful to point out that "The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin... . It is ... to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind." 319 U.S., at 630, 633. (Emphasis added.)Thus, in Reynolds v. United States, this Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy. And, in Prince v. Massachusetts, , this Court upheld a statute making it a crime for a girl under eighteen years of age to sell any newspapers, periodicals or merchandise in public places despite the fact that a child of the Jehovah's Witnesses faith believed that it was her religious duty to perform this work.It is to be noted that, in the two cases just mentioned, the religious practices themselves conflicted with the public interest. In such cases, to make accommodation between the religious action and an exercise of state authority is a particularly delicate task, id., at 165, because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.But, again, this is not the case before us because the statute at bar does not make unlawful any religious practices of appellants; the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive. Furthermore, the law's effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to work on Sunday.3 And even these are not faced with as serious a choice as forsaking their religious practices or subjecting themselves to criminal prosecution. Fully recognizing that the alternatives open to appellants and others similarly situated - retaining their present occupations and incurring economic disadvantage or engaging in some other commercial activity which does not call for either Saturday or Sunday labor - may well result in some financial sacrifice in order to observe their religious beliefs, still the option is wholly different than when the legislation attempts to make a religious practice itself unlawful.To strike down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i. e., legislation which does not make unlawful the religious practice itself, would radically restrict the operating latitude of the legislature. Statutes which tax income and limit the amount which may be deducted for religious contributions impose an indirect economic burden on the observance of the religion of the citizen whose religion requires him to donate a greater amount to his church; statutes which require the courts to be closed on Saturday and Sunday impose a similar indirect burden on the observance of the religion of the trial lawyer whose religion requires him to rest on a weekday. The list of legislation of this nature is nearly limitless.Needless to say, when entering the area of religious freedom, we must be fully cognizant of the particular protection that the Constitution has accorded it. Abhorrence of religious persecution and intolerance is a basic part of our heritage. But we are a cosmopolitan nation made up of people of almost every conceivable religious preference. These denominations number almost three hundred. Year Book of American Churches for 1958, 257 et seq. Consequently, it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions. We do not believe that such an effect is an absolute test for determining whether the legislation violates the freedom of religion protected by the First Amendment.Of course, to hold unassailable all legislation regulating conduct which imposes solely an indirect burden on the observance of religion would be a gross oversimplification. If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. See Cantwell v. Connecticut, supra, at pp. 304-305.4 As we pointed out in McGowan v. Maryland, supra, at pp. 444-445, we cannot find a State without power to provide a weekly respite from all labor and, at the same time, to set one day of the week apart from the others as a day of rest, repose, recreation and tranquillity - a day when the hectic tempo of everyday existence ceases and a more pleasant atmosphere is created, a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which people may visit friends and relatives who are not available during working days, a day when the weekly laborer may best regenerate himself. This is particularly true in this day and age of increasing state concern with public welfare legislation. Also, in McGowan, we examined several suggested alternative means by which it was argued that the State might accomplish its secular goals without even remotely or incidentally affecting religious freedom. Ante, at pp. 450-452. We found there that a State might well find that those alternatives would not accomplish bringing about a general day of rest. We need not examine them again here.However, appellants advance yet another means at the State's disposal which they would find unobjectionable. They contend that the State should cut an exception from the Sunday labor proscription for those people who, because of religious conviction, observe a day of rest other than Sunday. By such regulation, appellants contend, the economic disadvantages imposed by the present system would be removed and the State's interest in having all people rest one day would be satisfied.A number of States provide such an exemption,5 and this may well be the wiser solution to the problem. But our concern is not with the wisdom of legislation but with its constitutional limitation. Thus, reason and experience teach that to permit the exemption might well undermine the State's goal of providing a day that, as best possible, eliminates the atmosphere of commercial noise and activity. Although not dispositive of the issue, enforcement problems would be more difficult since there would be two or more days to police rather than one and it would be more difficult to observe whether violations were occurring.Additional problems might also be presented by a regulation of this sort. To allow only people who rest on a day other than Sunday to keep their businesses open on that day might well provide these people with an economic advantage over their competitors who must remain closed on that day;6 this might cause the Sunday-observers to complain that their religions are being discriminated against. With this competitive advantage existing, there could well be the temptation for some, in order to keep their businesses open on Sunday, to assert that they have religious convictions which compel them to close their businesses on what had formerly been their least profitable day. This might make necessary a state-conducted inquiry into the sincerity of the individual's religious beliefs,7 a practice which a State might believe would itself run afoul of the spirit of constitutionally protected religious guarantees. Finally, in order to keep the disruption of the day at a minimum, exempted employers would probably have to hire employees who themselves qualified for the exemption because of their own religious beliefs,8 a practice which a State might feel to be opposed to its general policy prohibiting religious discrimination in hiring.9 For all of these reasons, we cannot say that the Pennsylvania statute before us is invalid, either on its face or as applied.MR. JUSTICE HARLAN concurs in the judgment. MR. JUSTICE BRENNAN and MR. JUSTICE STEWART concur in our disposition of appellants' claims under the Establishment Clause and the Equal Protection Clause. MR. JUSTICE FRANKFURTER and MR. JUSTICE HARLAN have rejected appellants' claim under the Free Exercise Clause in a separate opinion.Accordingly, the decision is Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN, see ante, p. 459.][For dissenting opinion of MR. JUSTICE DOUGLAS, see ante, p. 561.] |
8 | The Fair Credit Reporting Act of 1970 (FCRA) requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy of" consumer reportsC. §1681e(b), and imposes liability on "[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any" individual, §1681n(a). Petitioner Spokeo, Inc., an alleged consumer reporting agency, operates a "people search engine," which searches a wide spectrum of databases to gather and provide personal information about individuals to a variety of users, including employers wanting to evaluate prospective employees. After respondent Thomas Robins discovered that his Spokeo-generated profile contained inaccurate information, he filed a federal class-action complaint against Spokeo, alleging that the company willfully failed to comply with the FCRA's requirements. The District Court dismissed Robins' complaint, holding that he had not properly pleaded injury in fact as required by Article III. The Ninth Circuit reversed. Based on Robins' allegation that "Spokeo violated his statutory rights" and the fact that Robins' "personal interests in the handling of his credit information are individualized," the court held that Robins had adequately alleged an injury in fact.Held: Because the Ninth Circuit failed to consider both aspects of the injury-in-fact requirement, its Article III standing analysis was incomplete. Pp. 5-11. (a) A plaintiff invoking federal jurisdiction bears the burden of establishing the "irreducible constitutional minimum" of standing by demonstrating (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561. Pp. 5-6. (b) As relevant here, the injury-in-fact requirement requires a plaintiff to show that he or she suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan, supra, at 560. Pp. 7-11. (1) The Ninth Circuit's injury-in-fact analysis elided the independent "concreteness" requirement. Both observations it made concerned only "particularization," i.e., the requirement that an injury "affect the plaintiff in a personal and individual way," Lujan, supra, at 560, n. 1, but an injury in fact must be both concrete and particularized, see, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___. Concreteness is quite different from particularization and requires an injury to be "de facto," that is, to actually exist. Pp. 7-8. (2) The Ninth Circuit also failed to address whether the alleged procedural violations entail a degree of risk sufficient to meet the concreteness requirement. A "concrete" injury need not be a "tangible" injury. See, e.g., Pleasant Grove City v. Summum, 555 U. S. 460. To determine whether an intangible harm constitutes injury in fact, both history and the judgment of Congress are instructive. Congress is well positioned to identify intangible harms that meet minimum Article III requirements, but a plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a right and purports to authorize a suit to vindicate it. Article III standing requires a concrete injury even in the context of a statutory violation. This does not mean, however, that the risk of real harm cannot satisfy that requirement. See, e.g., Clapper v. Amnesty Int'l USA, 568 U. S. ____. The violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact; in such a case, a plaintiff need not allege any additional harm beyond the one identified by Congress, see Federal Election Comm'n v. Akins. This Court takes no position on the correctness of the Ninth Circuit's ultimate conclusion, but these general principles demonstrate two things: that Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk and that Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. Pp. 8-11.742 F. 3d 409, vacated and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Breyer, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Ginsburg, J., filed a dissenting opinion, in which Sotomayor, J., joined.Opinion of the Court 578 U. S. ____ (2016)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1339SPOKEO, INC., PETITIONER v. THOMAS ROBINSon writ of certiorari to the united states court of appeals for the ninth circuit[May 16, 2016] Justice Alito delivered the opinion of the Court. This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84 Stat. 1127, as amended, 15 U. S. C. §1681 et seq. Spokeo operates a "people search engine." If an individual visits Spokeo's Web site and inputs a person's name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals. The District Court dismissed Robins' complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that "Spokeo violated his statutory rights, not just the statutory rights of other people," and, second, that "Robins's personal interests in the handling of his credit information are individualized rather than collective." 742 F. 3d 409, 413 (2014). Based on these two observations, the Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution. Id., at 413-414. This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both "concrete and particularized." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 180-181 (2000) (emphasis added). The Ninth Circuit's analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.I The FCRA seeks to ensure "fair and accurate credit reporting." §1681(a)(1). To achieve this end, the Act regulates the creation and the use of "consumer report[s]"1 by "consumer reporting agenc[ies]"2 for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§1681a(d)(1)(A)-(C); §1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living." §1681a(d)(1). The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy of" consumer reports, §1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, §1681e(d); to limit the circumstances in which such agencies provide consumer reports "for employment purposes," §1681b(b)(1); and to post toll-free numbers for consumers to request reports, §1681j(a). The Act also provides that "[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual3] is liable to that [individual]" for, among other things, either "actual damages" or statutory damages of $100 to $1,000 per violation, costs of the action and attorney's fees, and possibly punitive damages. §1681n(a). Spokeo is alleged to qualify as a "consumer reporting agency" under the FCRA.4 It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual's address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. App. 7, 10-11. According to Robins, Spokeo markets its services to a variety of users, including not only "employers who want to evaluate prospective employees," but also "those who want to investigate prospective romantic partners or seek other personal information." Brief for Respondent 7. Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free. At some point in time, someone (Robins' complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins' complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50's, has a job, is relatively affluent, and holds a graduate degree. App. 14. According to Robins' complaint, all of this information is incorrect. Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above. The District Court initially denied Spokeo's motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice. App. to Pet. for Cert. 23a. The court found that Robins had not "properly pled" an injury in fact, as required by Article III. Ibid. The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent,5 the court began by stating that "the violation of a statutory right is usually a sufficient injury in fact to confer standing." 742 F. 3d, at 412. The court recognized that "the Constitution limits the power of Congress to confer standing." Id., at 413. But the court held that those limits were honored in this case because Robins alleged that "Spokeo violated his statutory rights, not just the statutory rights of other people," and because his "personal interests in the handling of his credit information are individualized rather than collective." Ibid. (emphasis in original). The court thus concluded that Robins' "alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III." Id., at 413-414. We granted certiorari. 575 U. S. ___ (2015).IIA The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated "legislative Powers," Art. I, §1; it confers upon the President "[t]he executive Power," Art. II, §1, cl. 1; and it endows the federal courts with "[t]he judicial Power of the United States," Art. III, §1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006); Lujan v. Defenders of Wildlife, 504 U. S. 555, 559-560 (1992). Although the Constitution does not fully explain what is meant by "[t]he judicial Power of the United States," Art. III, § 1, it does specify that this power extends only to "Cases" and "Controversies," Art. III, §2. And " '[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.' " Raines v. Byrd, 521 U. S. 811, 818 (1997). Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. See id., at 820. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 473 (1982); Warth v. Seldin, 422 U. S. 490, 498-499 (1975). In this way, "[t]he law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches," Clapper v. Amnesty Int'l USA, 568 U. S. ___, ___ (2013) (slip op., at 9); Lujan, supra, at 576-577, and confines the federal courts to a properly judicial role, see Warth, supra, at 498. Our cases have established that the "irreducible constitutional minimum" of standing consists of three elements. Lujan, 504 U. S., at 560. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id., at 560-561; Friends of the Earth, Inc., 528 U. S., at 180-181. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990). Where, as here, a case is at the pleading stage, the plaintiff must "clearly . . . allege facts demonstrating" each element. Warth, supra, at 518.6B This case primarily concerns injury in fact, the "[f ]irst and foremost" of standing's three elements. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 103 (1998). Injury in fact is a constitutional requirement, and "[i]t is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Raines, supra, at 820, n. 3; see Summers v. Earth Island Institute, 555 U. S. 488, 497 (2009); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979) ("In no event . . . may Congress abrogate the Art. III minima"). To establish injury in fact, a plaintiff must show that he or she suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan, 504 U. S., at 560 (internal quotation marks omitted). We discuss the particularization and concreteness requirements below.1 For an injury to be "particularized," it "must affect the plaintiff in a personal and individual way." Ibid., n. 1; see also, e.g., Cuno, supra, at 342 (" 'plaintiff must allege personal injury' "); Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) (" 'distinct' "); Allen v. Wright, 468 U. S. 737, 751 (1984) ("personal"); Valley Forge, supra, at 472 (standing requires that the plaintiff " 'personally has suffered some actual or threatened injury' "); United States v. Richardson, 418 U. S. 166, 177 (1974) (not "undifferentiated"); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F. 3d 1279, 1292-1293 (CADC 2007) (collecting cases).7 Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be "concrete." Under the Ninth Circuit's analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins' complaint alleges "concrete, de facto" injuries for essentially two reasons. 742 F. 3d, at 413. First, the court noted that Robins "alleges that Spokeo violated his statutory rights, not just the statutory rights of other people." Ibid. Second, the court wrote that "Robins's personal interests in the handling of his credit information are individualized rather than collective." Ibid. (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g., Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___ (2014) (slip op., at 8); Summers, supra, at 493; Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 274 (2008); Massachusetts v. EPA, 549 U. S. 497, 517 (2007). A "concrete" injury must be "de facto"; that is, it must actually exist. See Black's Law Dictionary 479 (9th ed. 2009). When we have used the adjective "concrete," we have meant to convey the usual meaning of the term--"real," and not "abstract." Webster's Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.2 "Concrete" is not, however, necessarily synonymous with "tangible." Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City v. Summum, 555 U. S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (free exercise). In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 775-777 (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." 504 U. S., at 578. Similarly, Justice Kennedy's concurrence in that case explained that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Id., at 580 (opinion concurring in part and concurring in judgment). Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, 555 U. S., at 496 ("[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing"); see also Lujan, supra, at 572. This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See, e.g., Clapper v. Amnesty Int'l USA, 568 U. S. ____. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§569 (libel), 570 (slander per se) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. See Federal Election Comm'n v. Akins, 524 U. S. 11, 20-25 (1998) (confirming that a group of voters' "inability to obtain information" that Congress had decided to make public is a sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice, 491 U. S. 440, 449 (1989) (holding that two advocacy organizations' failure to obtain information subject to disclosure under the Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue"). In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA's procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency's consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.8 Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit's ultimate conclusion — that Robins adequately alleged an injury in fact — was correct.* * * The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.It is so ordered.Thomas, J., concurring 578 U. S. ____ (2016)No. 13-1339SPOKEO, INC., PETITIONER v. THOMAS ROBINSon writ of certiorari to the united states court of appeals for the ninth circuit[May 16, 2016] Justice Thomas, concurring. The Court vacates and remands to have the Court of Appeals determine "whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement." Ante, at 11. In defining what constitutes a concrete injury, the Court explains that "concrete" means " 'real,' " and "not 'abstract,' " but is not "necessarily synonymous with 'tangible.' " Ante, at 8-9. I join the Court's opinion. I write separately to explain how, in my view, the injury-in-fact requirement applies to different types of rights. The judicial power of common-law courts was historically limited depending on the nature of the plaintiff's suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine.IA Standing doctrine limits the "judicial power" to " 'cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.' " Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 774 (2000) (quoting Steel Co. v. Citizens for a Better Environment, 523 U. S. 83, 102 (1998)). To understand the limits that standing imposes on "the judicial Power," therefore, we must "refer directly to the traditional, fundamental limitations upon the powers of commonlaw courts." Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dissenting). These limitations preserve separation of powers by preventing the judiciary's entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party. Common-law courts imposed different limitations on a plaintiff's right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically, common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. "Private rights" are rights "belonging to individuals, considered as individuals." 3 W. Blackstone, Commentaries *2 (hereinafter Blackstone). "Private rights" have traditionally included rights of personal security (including security of reputation), property rights, and contract rights. See 1 id., at *130-*139; Woolhander & Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 693 (2004). In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded. Thus, when one man placed his foot on another's property, the property owner needed to show nothing more to establish a traditional case or controversy. See Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817 (1765). Many traditional remedies for private-rights causes of action — such as for trespass, infringement of intellectual property, and unjust enrichment — are not contingent on a plaintiff's allegation of damages beyond the violation of his private legal right. See Brief for Restitution and Remedies Scholars as Amici Curiae 6-18; see also Webb v. Portland Mfg. Co., 29 F. Cas. 506, 508 (No. 17,322) (Me. 1838) (stating that a legal injury "imports damage in the nature of it" (internal quotation marks omitted)). Common-law courts, however, have required a further showing of injury for violations of "public rights"--rights that involve duties owed "to the whole community, considered as a community, in its social aggregate capacity." 4 Blackstone *5. Such rights include "free navigation of waterways, passage on public highways, and general compliance with regulatory law." Woolhander & Nelson, 102 Mich. L. Rev., at 693. Generally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws. See id., at 695-700. Even in limited cases where private plaintiffs could bring a claim for the violation of public rights, they had to allege that the violation caused them "some extraordinary damage, beyond the rest of the [community]." 3 Blackstone *220 (discussing nuisance); see also Commonwealth v. Webb, 27 Va. 726, 729 (Gen. Ct. 1828).1 An action to redress a public nuisance, for example, was historically considered an action to vindicate the violation of a public right at common law, lest "every subject in the kingdom" be able to "harass the offender with separate actions." 3 Blackstone *219; see also 4 id., at *167 (same). But if the plaintiff could allege "special damage" as the result of a nuisance, the suit could proceed. The existence of special, individualized damage had the effect of creating a private action for compensatory relief to an otherwise public-rights claim. See 3 id., at *220. Similarly, a plaintiff had to allege individual damage in disputes over the use of public lands. E.g., Robert Marys's Case, 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898-899 (K. B. 1613) (commoner must establish not only injuria [legal injury] but also damnum [damage] to challenge another's overgrazing on the commons).B These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court's description of the injury-in-fact requirement. "Injury in fact" is the first of three "irreducible" requirements for Article III standing. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992). The injury-in-fact requirement often stymies a private plaintiff's attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a "concrete" injury particular to himself. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-223 (1974) (explaining this where plaintiffs sought to enforce the Incompatibility Clause, Art. I, §6, cl. 2, against Members of Congress holding reserve commissions in the Armed Forces); see also Lujan, supra, at 572-573 (evaluating standing where plaintiffs sought to enforce the Endangered Species Act); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 183-184 (2000) (Clean Water Act). This requirement applies with special force when a plaintiff files suit to require an executive agency to "follow the law"; at that point, the citizen must prove that he "has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U. S. 633, 634 (1937) ( per curiam). Thus, in a case where private plaintiffs sought to compel the U. S. Forest Service to follow certain procedures when it regulated "small fire-rehabilitation and timber-salvage projects," we held that "deprivation of a procedural right without some concrete interest that is affected by the deprivation . . . is insufficient to create Article III standing," even if "accorded by Congress." Summers v. Earth Island Institute, 555 U. S. 488, 490, 496-497 (2009). But the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights. Our contemporary decisions have not required a plaintiff to assert an actual injury beyond the violation of his personal legal rights to satisfy the "injury-in-fact" requirement. See, e.g., Carey v. Piphus, 435 U. S. 247, 266 (1978) (holding that nominal damages are appropriate when a plaintiff's constitutional rights have been infringed but he cannot show further injury). The separation-of-powers concerns underlying our public-rights decisions are not implicated when private individuals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government action. See Schlesinger, supra, at 222. And by limiting Congress' ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion. See Lujan, supra, at 577 (" 'To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed' "). But where one private party has alleged that another private party violated his private rights, there is generally no danger that the private party's suit is an impermissible attempt to police the activity of the political branches or, more broadly, that the legislative branch has impermissibly delegated law enforcement authority from the executive to a private individual. See Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 317-321 (2008).C When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts' power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin, 422 U. S. 490, 500 (1975). A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right. See Havens Realty Corp. v. Coleman, 455 U. S. 363, 373-374 (1982) (recognizing standing for a violation of the Fair Housing Act); Tennessee Elec. Power Co. v. TVA, 306 U. S. 118, 137-138 (1939) (recognizing that standing can exist where "the right invaded is a legal right,--one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege"). A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population. See Lujan, supra, at 578 (noting that, whatever the scope of Congress' power to create new legal rights, "it is clear that in suits against the Government, at least, the concrete injury requirement must remain"). Thus, Congress cannot authorize private plaintiffs to enforce public rights in their own names, absent some showing that the plaintiff has suffered a concrete harm particular to him.II Given these principles, I agree with the Court's decision to vacate and remand. The Fair Credit Reporting Act creates a series of regulatory duties. Robins has no standing to sue Spokeo, in his own name, for violations of the duties that Spokeo owes to the public collectively, absent some showing that he has suffered concrete and particular harm. See supra, at 4-5. These consumer protection requirements include, for example, the requirement to "post a toll-free telephone number on [Spokeo's] website through which consumers can request free annual file disclosures." App. 23, First Amended Complaint ¶74; see 15 U. S. C. §1681j; 16 CFR §610.3(a)(1) (2010). But a remand is required because one claim in Robins' complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b) requires Robins to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." §1681e(b) (emphasis added). If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. If that provision, however, vests any and all consumers with the power to police the "reasonable procedures" of Spokeo, without more, then Robins has no standing to sue for its violation absent an allegation that he has suffered individualized harm. On remand, the Court of Appeals can consider the nature of this claim.Ginsburg, J., dissenting 578 U. S. ____ (2016)No. 13-1339SPOKEO, INC., PETITIONER v. THOMAS ROBINSon writ of certiorari to the united states court of appeals for the ninth circuit[May 16, 2016] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. In the Fair Credit Reporting Act of 1970 (FCRA or Act), 15 U. S. C. §1681 et seq., Congress required consumer reporting agencies, whenever preparing a consumer report, to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." §1681e(b). To promote adherence to the Act's procedural requirements, Congress granted adversely affected consumers a right to sue noncomplying reporting agencies. §1681n (willful noncompliance); §1681o (negligent noncompliance).1 Thomas Robins instituted suit against Spokeo, Inc., alleging that Spokeo was a reporting agency governed by the FCRA, and that Spokeo maintains on its Web site an inaccurate consumer report about Robins. App. 13. In particular, Robins alleged that Spokeo posted "a picture . . . purport[ing] to be an image of Robins [that] was not in fact [of him]," and incorrectly reported that Robins "was in his 50s, . . . married, . . . employed in a professional or technical field, and . . . has children." Id., at 14. Robins further alleged that Spokeo's profile of him continues to misrepresent "that he has a graduate degree, that his economic health is 'Very Strong[,]' and that his wealth level [is in] the 'Top 10%.' " Ibid. Spokeo displayed that erroneous information, Robins asserts, when he was "out of work" and "actively seeking employment." Ibid. Because of the misinformation, Robins stated, he encountered "[imminent and ongoing] actual harm to [his] employment prospects." Ibid.2 As Robins elaborated on brief, Spokeo's report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities. See Brief for Respondent 44. I agree with much of the Court's opinion. Robins, the Court holds, meets the particularity requirement for standing under Article III. See ante, at 8, 11 (remanding only for concreteness inquiry). The Court acknowledges that Congress has the authority to confer rights and delineate claims for relief where none existed before. Ante, at 9; see Federal Election Comm'n v. Akins, 524 U. S. 11, 19-20 (1998) (holding that inability to procure information to which Congress has created a right in the Federal Election Campaign Act of 1971 qualifies as concrete injury satisfying Article III's standing requirement); Public Citizen v. Department of Justice, 491 U. S. 440, 449 (1989) (holding that plaintiff advocacy organizations' inability to obtain information that Congress made subject to disclosure under the Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue"); Havens Realty Corp. v. Coleman, 455 U. S. 363, 373 (1982) (identifying, as Article III injury, violation of plaintiff's right, secured by the Fair Housing Act, to "truthful information concerning the availability of housing").3 Congress' connection of procedural requirements to the prevention of a substantive harm, the Court appears to agree, is "instructive and important." Ante, at 9; see Lujan v. Defenders of Wildlife, 504 U. S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in judgment) ("As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action . . . ."); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 3 ("Congress cannot authorize individual plaintiffs to enforce generalized rights that belong to the whole public. But Congress can create new individual rights, and it can enact effective remedies for those rights."). See generally Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613 (1999). I part ways with the Court, however, on the necessity of a remand to determine whether Robins' particularized injury was "concrete." See ante, at 11. Judged by what we have said about "concreteness," Robins' allegations carry him across the threshold. The Court's opinion observes that time and again, our decisions have coupled the words "concrete and particularized." Ante, at 8 (citing as examples, Susan B. Anthony List v. Driehaus, 573 U. S. ___, ___ (2014) (slip op., at 8); Summers v. Earth Island Institute, 555 U. S. 488, 493 (2009); Sprint Communications Co. v. APCC Services, Inc., 554 U. S. 269, 274 (2008); Massachusetts v. EPA, 549 U. S. 497, 517 (2007)). True, but true too, in the four cases cited by the Court, and many others, opinions do not discuss the separate offices of the terms "concrete" and "particularized." Inspection of the Court's decisions suggests that the particularity requirement bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large. See, e.g., Lujan, 504 U. S., at 573-574 (a plaintiff "seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy" (punctuation omitted)); Perkins v. Lukens Steel Co., 310 U. S. 113, 125 (1940) (plaintiffs lack standing because they failed to show injury to "a particular right of their own, as distinguished from the public's interest in the administration of the law"). Robins' claim does not present a question of that character. He seeks redress, not for harm to the citizenry, but for Spokeo's spread of misinformation specifically about him. Concreteness as a discrete requirement for standing, the Court's decisions indicate, refers to the reality of an injury, harm that is real, not abstract, but not necessarily tangible. See ante, at 8-9; ante, at 1 (Thomas, J., concurring). Illustrative opinions include Akins, 524 U. S., at 20 ("[C]ourts will not pass upon abstract, intellectual problems, but adjudicate concrete, living contests between adversaries." (internal quotation marks and alterations omitted)); Diamond v. Charles, 476 U. S. 54, 67 (1986) (plaintiff's "abstract concern does not substitute for the concrete injury required by Art[icle] III" (internal quotation marks and ellipsis omitted)); Los Angeles v. Lyons, 461 U. S. 95, 101 (1983) ("Plaintiffs must demonstrate a personal stake in the outcome . . . . Abstract injury is not enough." (internal quotation marks omitted)); Babbitt v. Farm Workers, 442 U. S. 289, 297-298 (1979) ("The difference between an abstract question and a 'case or controversy' is one of degree, of course, and is not discernable by any precise test. The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." (citation, some internal quotation marks, and ellipsis omitted)); Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40 (1976) ("organization's abstract concern . . . does not substitute for the concrete injury required by Art. III"); California Bankers Assn. v. Shultz, 416 U. S. 21, 69 (1974) ("There must be . . . concrete adverseness"; "[a]bstract injury is not enough." (internal quotation marks omitted)); Railway Mail Assn. v. Corsi, 326 U. S. 88, 93 (1945) (controversy must be "definite and concrete, not hypothetical or abstract"); Coleman v. Miller, 307 U. S. 433, 460 (1939) (opinion of Frankfurter, J.) ("[I]t [is] not for courts to pass upon . . . abstract, intellectual problems but only . . . concrete, living contest[s] between adversaries call[ing] for the arbitrament of law."). Robins would not qualify, the Court observes, if he alleged a "bare" procedural violation, ante, at 10, one that results in no harm, for example, "an incorrect zip code," ante, at 11. Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo's inaccuracies bore on Robins' "ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him."); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 ("An applicant can lose [a] job for being over-qualified; a suitor can lose a woman if she reads that he is married."). The FCRA's procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410-2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins' complaint already conveys concretely: Spokeo's misinformation "cause[s] actual harm to [his] employment prospects." App. 14.* * * For the reasons stated, I would affirm the Ninth Circuit's judgment.FOOTNOTESFootnote 1 The Act defines the term "consumer report" as: "any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for--"(A) credit or insurance to be used primarily for personal, family, or household purposes;"(B) employment purposes; or"(C) any other purpose authorized under section 1681b of this title." 15 U. S. C. §1681a(d)(1).Footnote 2 "The term 'consumer reporting agency' means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports." §1681a(f ).Footnote 3 This statutory provision uses the term "consumer," but that term is defined to mean "an individual." §1681a(c).Footnote 4 For purposes of this opinion, we assume that Spokeo is a consumer reporting agency.Footnote 5 See Edwards v. First American Corp., 610 F. 3d 514 (CA9 2010), cert. granted sub nom. First American Financial Corp. v. Edwards, 564 U. S. 1018 (2011), cert. dism'd as improvidently granted, 567 U. S. ___ (2012) ( per curiam).Footnote 6 "That a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class 'must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong.' " Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 40, n. 20 (1976) (quoting Warth, 422 U. S., at 502).Footnote 7 The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance. The victims' injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm.Footnote 8 We express no view about any other types of false information that may merit similar treatment. We leave that issue for the Ninth Circuit to consider on remand.FOOTNOTESFootnote 1 The well-established exception for qui tam actions allows private plaintiffs to sue in the government's name for the violation of a public right. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 773-774 (2000).FOOTNOTESFootnote 1 Congress added the right of action for willful violations in 1996 as part of the Consumer Credit Reporting Reform Act, 110 Stat. 3009-426.Footnote 2 Because this case remains at the pleading stage, the court of first instance must assume the truth of Robins' factual allegations. In particular, that court must assume, subject to later proof, that Spokeo is a consumer reporting agency under 15 U. S. C. §1681a(f ) and that, in preparing consumer reports, Spokeo does not employ reasonable procedures to ensure maximum possible accuracy, in violation of the FCRA.Footnote 3 Just as the right to truthful information at stake in Havens Realty Corp. v. Coleman, 455 U. S. 363 (1982), was closely tied to the Fair Housing Act's goal of eradicating racial discrimination in housing, so the right here at stake is closely tied to the FCRA's goal of protecting consumers against dissemination of inaccurate credit information about them. |
1 | Alleging a course of racially discriminatory practices calculated to deprive Negro citizens of their voting rights, the United States brought an action for declaratory and injunctive relief under the Civil Rights Act of 1957 against the Board of Registrars of an Alabama county, the individual members thereof and the State of Alabama. The District Court dismissed the complaint, holding, inter alia, that the Civil Rights Act of 1957 did not authorize the action against the State. The Court of Appeals affirmed, and this Court granted certiorari. Before the case was heard in this Court, the Civil Rights Act of 1957 was amended so as expressly to authorize such actions to be brought against a State. Held: By virtue of that amendment, which is to be applied to this case, the District Court now has jurisdiction to entertain this action against the State. Accordingly, both of the judgments below are vacated and the case is remanded to the District Court with instructions to reinstate the action as to the State. Pp. 602-604. 267 F.2d 808, judgments vacated and case remanded.Solicitor General Rankin argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Ryan, Harold H. Greene, D. Robert Owen and David Rubin.Gordon Madison and Nicholas S. Hare, Assistant Attorneys General of Alabama, argued the cause for respondents. With them on the brief were MacDonald Gallion, Attorney General, and Lawrence K. Andrews.PER CURIAM.Alleging a course of racially discriminatory practices calculated to deprive Negro citizens of their voting rights in violation of the Fifteenth Amendment to the Constitution of the United States and Part IV of the Civil Rights Act of 1957, 71 Stat. 637, 42 U.S.C. 1971 (a),1 the United States, proceeding under 42 U.S.C. 1971 (c),2 brought this action against the Board of Registrars of Macon County, Alabama, and the two individual respondents as members thereof, for declaratory and injunctive relief. Thereafter the Government amended its complaint so as to join the State of Alabama as a party defendant.The District Court dismissed the complaint as to all defendants. It held (1) that the individual respondents had been sued only as Registrars, and that having under Alabama law effectively resigned their offices they were not suable in their official capacities; (2) that the Board of Registrars was not a suable legal entity; and (3) that the Civil Rights Act of 1957 did not authorize this action against the State. 171 F. Supp. 720. The Court of Appeals, sustaining each of these holdings, affirmed. 267 F.2d 808. Because of the importance of the issues involved we brought the case here. .Shortly before the case was heard in this Court on May 2, 1960, Congress passed the Civil Rights Act of 1960. The bill was signed by the President on May 6, 1960, and has now become law. Act of May 6, 1960, 74 Stat. 86. Among other things 601 (b) of that Act amends 42 U.S.C. 1971 (c) by expressly authorizing actions such as this to be brought against a State.3 Under familiar principles, the case must be decided on the basis of law now controlling, and the provisions of 601 (b) are applicable to this litigation. American Foundries v. Tri-City Council, ; Hines v. Davidowitz, ; see also Reynolds v. United States, .We hold that by virtue of the provisions of that section the District Court has jurisdiction to entertain this action against the State. In so holding we do not reach, or intimate any view upon, any of the issues decided below, the merits of the controversy, or any defenses, constitutional or otherwise, that may be asserted by the State.Accordingly, the judgments of the Court of Appeals and the District Court will be vacated, and the case remanded to the District Court for the Middle District of Alabama with instructions to reinstate the action as to the State of Alabama, and for further proceedings consistent with this opinion. It is so ordered. |
6 | A 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association increased health benefits, payable out of a trust fund financed by contributions from the operators, for widows of coal miners who died prior to the effective date of the agreement and who were receiving pensions when they died, but did not increase such benefits for widows of miners who died prior to the effective date and were still working at the time of death even though they were eligible for pensions. Respondents, widows of miners who died in 1967 and 1971, respectively, and were eligible for pensions but were still working at the time of their deaths, brought a class action in Federal District Court against the trustees of the fund, alleging that the requirement that a miner be receiving a pension at the time of his death in order to make his widow eligible for the increased health benefits had no rational relationship to the purposes of the trust fund and therefore was illegal under 302 of the Labor Management Relations Act. The District Court denied relief. The Court of Appeals reversed, holding that 302(c)(5), which requires jointly administered pension trusts to be maintained "for the sole and exclusive benefit of employees ... and their families and dependents," means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard, and that in this case the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners.Held: Section 302(c)(5) does not authorize federal courts to review for reasonableness the provisions of a collective-bargaining agreement, such as the provisions in question, allocating health benefits among potential beneficiaries of an employee benefit trust fund. Pp. 570-576. (a) Section 302(c)(5)'s language embodies no reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. P. 570. (b) This reading is amply supported by the legislative history, which indicates that 302(c)(5) was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to union leaders' private benefit. Pp. 570-572. (c) Such interpretation is also supported by 302(c)(5)'s other requirements prescribing the conditions that must be satisfied to exempt employer contributions to pension funds from a criminal sanction. P. 572. (d) Absent conflict with federal law, the trustees here breached no fiduciary duties in administering the trust fund in question in accordance with the 1974 collective-bargaining agreement. Pp. 573-574. (e) When neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract. Pp. 574-576. App. D.C. 330, 640 F.2d 416, reversed.STEVENS, J., delivered the opinion for a unanimous Court.E. Calvin Golumbic argued the cause for petitioners. With him on the briefs was William F. Hanrahan.Larry F. Sword argued the cause for respondents. With him on the brief was John M. Rosenberg.* [Footnote *] Briefs of amici curiae urging reversal were filed by J. Albert Woll, Laurence Gold, Julia Penny Clark, and George Kaufmann for the AFL-CIO; and by Charles P. O'Connor and James H. Lengel for the Bituminous Coal Operators' Association, Inc. Gill Deford, Neal S. Dudovitz, and Bruce K. Miller filed a brief for the National Black Lung Association as amicus curiae urging affirmance.JUSTICE STEVENS delivered the opinion of the Court.This case involves a discrimination between two classes of widows of coal miners who died prior to December 6, 1974 - those whose husbands were receiving pensions when they died and those whose husbands were still working although they were eligible for pensions. The 1974 collective-bargaining agreement between the United Mine Workers of America and the Bituminous Coal Operators' Association, Inc., increased the health benefits for widows in the former class but made no increase for those in the latter class. The United States Court of Appeals for the District of Columbia Circuit held that this discrimination was arbitrary and therefore violated 302(c)(5) of the Labor Management Relations Act of 1947 (LMRA).1 App. D.C. 330, 640 F.2d 416 (1981). We granted certiorari to decide whether 302(c)(5) authorizes federal courts to review for reasonableness the provisions of a collective-bargaining agreement allocating health benefits among potential beneficiaries of an employee benefit trust fund. .IA description of the origin of the discrimination may explain why the Court of Appeals considered it arbitrary. The 1950 collective-bargaining agreement between the union and the operators established a fund to provide pension, health, and other benefits for certain miners and their dependents. That agreement defined the operators' obligation to contribute to the fund but delegated the authority to define the amount of benefits and the conditions of eligibility to the trustees of the fund.2 In 1967 the trustees adopted two resolutions governing benefits for widows. Under the first, a widow of a retired miner who was receiving a pension at the time of his death was entitled to a death benefit of $2,000 payable over a 2-year period, and a widow of a miner who was eligible for a pension but who was still working at the time of his death was entitled to a $5,000 benefit payable over a 5-year period.3 The second resolution authorized hospital and medical-care benefits for unremarried widows of deceased miners while they were receiving the widows' benefit authorized by the first resolution.4 The effect of these two resolutions was to provide a greater health benefit for widows of working miners who were eligible for pensions than for widows of miners who were receiving pension benefits.In 1974, because of their concerns about compliance with minimum funding standards of the recently enacted Employee Retirement Income Security Act (ERISA), 88 Stat. 829, as amended, 29 U.S.C. 1001 et seq. (1976 ed. and Supp. IV), and about the actuarial soundness of the 1950 fund, the union and the operators agreed to restructure the industry's benefit program. They agreed that the amount of benefits and the eligibility requirements, as well as the level of contributions, should be specified in their collective-bargaining agreement. They also decided to replace the single 1950 fund with four separate funds, two of which provided pension benefits while two others, the "1950 Benefit Trust" and the "1974 Benefit Trust," provided health and death benefits. The 1950 Benefit Trust, which is at issue in this case, extended lifetime health coverage to certain widows of miners who died before December 6, 1974, the effective date of the 1974 collective-bargaining agreement.5 During the 1974 negotiations, the union originally demanded that all unremarried widows who were entitled to health benefits for either two years or five years under the old plan be extended lifetime health coverage. Both the amount and the uncertainty of the cost of such coverage for these widows concerned the operators. Relatively early in the negotiations they nevertheless accepted the demand as it related to widows of miners who would die after the agreement became effective, but they objected to the requested increase for widows of already deceased miners. The operators estimated that the latter class consisted of between 25,000 and 50,000 widows, whereas the union's estimate was approximately 40,000. Of that total, about 10% were believed to be widows of miners who had been working at the time of their death, even though eligible for pensions, and thus already had been entitled to five years of health benefits. In the final stages of the 1974 negotiations, after a strike had begun, the operators made a package proposal to the union that excluded this smaller group of perhaps 4,000 or 5,000 widows from any increased health benefits. Besides making it possible to conclude an otherwise acceptable, complex collective-bargaining agreement and to avoid a prolonged strike, the union received no separately identifiable quid pro quo for the rejection of this portion of its demands.IIRespondents are widows of coal miners who died in 1967 and 1971, respectively. Their husbands were over age 55, had been employed in the industry for over 20 years, and had spent most of their careers in the employ of contributing employers. They were eligible for pensions but were still working at the time of their deaths. Under the 1950 plan, respondents were entitled to $5,000 death benefits and health benefits for five years. They received no additional benefits from the 1974 agreement. Had their husbands applied for the pensions for which they were eligible, they now would be entitled to lifetime health coverage.On their own behalf and as representatives of a class of similarly situated widows and dependents of deceased coal miners, respondents brought this action against the trustees of the funds in the United States District Court for the District of Columbia.6 They alleged that the requirement that a miner actually be receiving a pension for which he was eligible at the time of his death in order to make his survivors eligible for lifetime health benefits has no rational relationship with the purposes of the trust funds and therefore was illegal under 302 of the LMRA. They prayed that the requirement be declared null and void and that the trustees be ordered to pay to them health benefits retrospectively and prospectively.After certifying the respondents' class,7 and after indicating that the plaintiffs had made a prima facie showing of arbitrariness, the court scheduled a hearing to give the petitioners an opportunity to prove that the discrimination against respondents was not arbitrary. At that hearing the District Court received documents prepared during the 1974 collective-bargaining negotiations and heard the testimony of participants in those negotiations. Based on that evidence, the District Court found that "the question of whether or not to provide plaintiffs the benefits they now seek was the subject of explicit, informed and intense bargaining." App. to Pet. for Cert. 25a. The court rejected the argument that the eligibility requirement was arbitrary and capricious and held that "the trustees are bound to adhere to the terms of the agreement." Ibid. The court concluded: "Public policy dictates the limited role of courts in reviewing collectively bargained agreements. The familiar history of the anguished relations between the bargaining parties in this case only underscores the delicacy of the balance set in each agreement. Plaintiffs' relief, if indeed any is due, cannot come from the courts." Ibid. A divided panel of the Court of Appeals reversed. Relying on the 302(c)(5) requirement that jointly administered pension trusts be maintained "for the sole and exclusive benefit of the employees of [the contributing] employer, and their families and dependents," the court held that any rule denying benefits to employees on whose behalf significant contributions had been made must be explained to its satisfaction, particularly if benefits were authorized for others who had worked a lesser period of time for contributing employers. App. D.C., at 335, 640 F.2d, at 421. In this case, the trustees were unable to produce an acceptable explanation for the discrimination between widows of pensioners and widows of pension-eligible miners. Specifically, the court held that it was "not enough that the particular eligibility standards were adopted simply because that enabled resolution of a collective bargaining dispute." Id., at 338, 640 F.2d, at 424. Recognizing the legitimacy of a concern about actuarial soundness of pension trust funds, the court held that "financial integrity must be secured by methods dividing beneficiaries from nonbeneficiaries on lines reasonably calculated to further the fund's purposes." Id., at 337-338, 640 F.2d, at 423-424.Judge Robb, in dissent, agreed with the reasoning of the District Court and added the observation that the discrimination against widows of active miners was rational because those widows had received a larger death benefit than widows of pensioners, and because their needs may have been lesser than those of the families of pensioners since their husbands had continued to work after they were eligible for pensions.IIIThe Court of Appeals held that the requirement in 302(c)(5) that an employee benefit trust fund be maintained "for the sole and exclusive benefit of the employees ... and their families and dependents" means that eligibility rules fixed by a collective-bargaining agreement must meet a reasonableness standard. The statutory language hardly embodies this reasonableness requirement. Its plain meaning is simply that employer contributions to employee benefit trust funds must accrue to the benefit of employees and their families and dependents, to the exclusion of all others. Indeed, this has been this Court's consistent interpretation of 302(c)(5).Just last Term, the Court reiterated that "the `sole purpose' of 302(c)(5) is to ensure that employee benefit trust funds `are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them ... .'" NLRB v. Amax Coal Co., (quoting 93 Cong. Rec. 4678 (1947), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, p. 1305 (Leg. Hist. LMRA)). See Arroyo v. United States, .8 Accord, Walsh v. Schlecht, ; Lewis v. Benedict Coal Corp., (Frankfurter, J., dissenting). This reading is amply supported by the legislative history. See, e. g., 93 Cong. Rec. 4877 (1947), 2 Leg. Hist. LMRA, at 1312;9 93 Cong. Rec., at 4752-4753, 2 Leg. Hist. LMRA, at 1321-1322.10 The section was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as "war chests" to support union programs or political factions, or might become vehicles through which "racketeers" accepted bribes or extorted money from employers.Our interpretation of the purpose of the "sole and exclusive benefit" requirement is reinforced by the other requirements of 302(c)(5). Section 302(c)(5) is an exception in a criminal statute that broadly prohibits employers from making direct or indirect payments to unions or union officials. Each of the specific conditions that must be satisfied to exempt employer contributions to pension funds from the criminal sanction is consistent with the nondiversion purpose. The fund must be established "for the sole and exclusive benefit" of employees and their families and dependents; contributions must be held in trust for that purpose and must be used exclusively for health, retirement, death, disability, or unemployment benefits; the basis for paying benefits must be specified in a written agreement; and the fund must be jointly administered by representatives of management and labor.11 All the conditions in the section fortify the basic requirement that employer contributions be administered for the sole and exclusive benefit of employees. None of the conditions places any restriction on the allocation of the funds among the persons protected by 302(c)(5). The Court of Appeals did not attempt to ground its holding on the text or legislative history of 302(c)(5). Rather, the court relied upon cases in which trustees of employee benefit trust funds, not the collective-bargaining agreement, fixed the eligibility rules and benefit levels. The Court of Appeals has held in those cases "that the Trustees have `full authority ... with respect to questions of coverage and eligibility' and that the court's role is limited to ascertaining whether the Trustees' broad discretion has been abused by the adoption of arbitrary or capricious standards." Pete v. United Mine Workers of America Welfare & Retirement Fund of 1950App. D.C. 1, 9, 517 F.2d 1275, 1283 (1975) (en banc) (footnote omitted). Noting that "[t]he institutional arrangements creating this Fund and specifying the purposes to which it is to be devoted are cast expressly in fiduciary form," the court stated that "the Trustees, like all fiduciaries, are subject to judicial correction in a proper case upon a showing that they have acted arbitrarily or capriciously towards one of the persons to whom their trust obligations run." Kosty v. LewisApp. D.C. 343, 346, 319 F.2d 744, 747 (1963), cert. denied, . Those cases, however, provide no support for the Court of Appeals' holding in this case.12 The petitioner trustees were not given "full authority" to determine eligibility requirements and benefit levels, for these were fixed by the 1974 collective-bargaining agreement. By the terms of the trust created by that agreement, the trustees are obligated to enforce these determinations unless modification is required to comply with applicable federal law.13 The common law of trusts does not alter this obligation. See NLRB v. Amax Coal Co., 453 U.S., at 336-337; Restatement (Second) of Trusts 164 (1959). Cf. 29 U.S.C. 1104(a)(1)(D) (1976 ed., Supp. IV). Absent conflict with federal law, then, the trustees breached no fiduciary duties in administering the 1950 Benefit Trust in accordance with the terms established in the 1974 collective-bargaining agreement.Section 302(c)(5) plainly does not impose the Court of Appeals' reasonableness requirement, and respondents do not offer any alternative federal law to sustain the court's holding. There is no general requirement that the complex schedule of the various employee benefits must withstand judicial review under an undefined standard of reasonableness. This is no less true when the potential beneficiaries subject to discriminatory treatment are not members of the bargaining unit; we previously have recognized that former members and their families may suffer from discrimination in collective-bargaining agreements because the union need not "affirmatively ... represent [them] or ... take into account their interests in making bona fide economic decisions in behalf of those whom it does represent." Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., , n. 20.14 Moreover, because finite contributions must be allocated among potential beneficiaries, inevitably financial and actuarial considerations sometimes will provide the only justification for an eligibility condition that discriminates between different classes of potential applicants for benefits. As long as such conditions do not violate federal law or policy, they are entitled to the same respect as any other provision in a collective-bargaining agreement.The substantive terms of jointly administered employee benefit plans must comply with the detailed and comprehensive standards of the ERISA. The terms of any collective-bargaining agreement must comply with federal laws that prohibit discrimination on grounds of race, color, religion, sex, or national origin;15 that protect veterans;16 that regulate certain industries;17 and that preserve our competitive economy.18 Obviously, an agreement must also be substantively consistent with the National Labor Relations Act, 29 U.S.C. 151 et seq.19 Moreover, in the collective-bargaining process, the union must fairly represent the interests of all employees in the unit.20 But when neither the collective-bargaining process nor its end product violates any command of Congress, a federal court has no authority to modify the substantive terms of a collective-bargaining contract.21 The record in this case discloses no violation of 302(c)(5) or of any other federal law. The judgment of the Court of Appeals is therefore reversed. It is so ordered. |
0 | At respondent's murder trial in a Michigan court resulting in his conviction, he was asked on cross-examination why he told the jury on direct examination a different story about stealing the murder victim's car than he had told the police officers following his arrest after being given Miranda warnings. After his conviction was affirmed on appeal, respondent unsuccessfully sought a writ of habeas corpus in Federal District Court, but the Court of Appeals reversed, holding that the cross-examination violated due process under the rule of Doyle v. Ohio, .Held: The cross-examination did not violate due process. Doyle, which held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant's silence following Miranda warnings, does not apply to cross-examination, such as occurred here, that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. Certiorari granted; 610 F.2d 417, reversed.PER CURIAM.Respondent Glenn Charles was arrested in Grand Rapids, Mich., while driving a stolen car. The car belonged to Theodore Ziefle, who had been strangled to death in his Ann Arbor home less than a week earlier. The respondent was charged with first-degree murder. At his trial in the Circuit Court of Washtenaw County, Mich., the State presented circumstantial evidence linking the respondent with the crime. The respondent was found with Ziefle's car and some of his other personal property. The respondent also owned clothing like that worn by the man last seen with the victim, and he boasted to witnesses that he had killed a man and stolen his car. Police Detective Robert LeVanseler testified that he interviewed the respondent shortly after his arrest. After giving the respondent Miranda warnings, LeVanseler asked him about the stolen automobile. According to LeVanseler, the respondent said that he stole the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles from the local bus station.The respondent testified in his own behalf. On direct examination, he stated that he took Ziefle's unattended automobile from the parking lot of Kelly's Tire Co. in Ann Arbor. On cross-examination, the following colloquy occurred: "Q. Now, this Kelly's Tire Company, that's right next to the bus station, isn't it? "A. That's correct. "Q. And, the bus station and Kelly's Tire are right next to the Washtenaw County Jail are they not? "A. They are. "Q. And, when you're standing in the Washtenaw County Jail looking out the window you can look right out and see the bus station and Kelly's Tire, can you not? "A. That's correct. "Q. So, you've had plenty of opportunity from - well, first you spent some time in the Washtenaw County Jail, haven't you? "A. Quite a bit. "Q. And, you have had plenty of opportunity to look out that window and see the bus station and Kelly's Tire? "A. That's right. "Q. And, you've seen cars being parked there, isn't that right? "A. That's correct. "Q. Is this where you got the idea to come up with the story that you took a car from that location? "A. No, the reason I came up with that is because it's the truth. "Q. It's the truth? "A. That's right. "Q. Don't you think it's rather odd that if it were the truth that you didn't come forward and tell anybody at the time you were arrested, where you got that car? "A. No, I don't. "Q. You don't think that's odd? "A. I wasn't charged with auto theft, I was charged with murder. "Q. Didn't you think at the time you were arrested that possibly the car would have something to do with the charge of murder? "A. When I tried to talk to my attorney they wouldn't let me see him and after that he just said to keep quiet. "Q. This is a rather recent fabrication of yours isn't [sic] it not? "A. No it isn't. "Q. Well, you told Detective LeVanseler back when you were first arrested, you stole the car back on Washtenaw and Hill Street? "A. Never spoke with Detective LeVanseler. "Q. Never did? "A. Right, except when Detective Hall and Price were there and then it was on tape." Trial Transcript 302-304. The jury convicted the respondent of first-degree murder. The Michigan Court of Appeals affirmed, People v. Charles, 58 Mich. App. 371, 227 N. W. 2d 348 (1975), and the Michigan Supreme Court denied leave to appeal, 397 Mich. 815 (1976). The respondent then sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court withheld the writ, but a divided panel of the Court of Appeals for the Sixth Circuit reversed. The Court of Appeals held that "the prosecutor's questions about [respondent's] post-arrest failure to tell officers the same story he told the jury violated due process" under the rule of Doyle v. Ohio, . 610 F.2d 417, 422 (1979).1 The prison warden now petitions for a writ of certiorari. We grant the petition, grant the respondent leave to proceed in forma pauperis, and reverse the judgment of the Court of Appeals.In Doyle, we held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant's silence following Miranda warnings. The case involved two defendants who made no postarrest statements about their involvement in the crime.2 Each testified at trial that he had been framed. On cross-examination, the prosecutor asked the defendants why they had not told the frameup story to the police upon arrest. We concluded that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him. 426 U.S., at 618-619; see Jenkins v. Anderson, ante, at 239-240.Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. See United States v. Agee, 597 F.2d 350, 354-356 (CA3) (en banc), cert. denied, ; United States v. Mireles, 570 F.2d 1287, 1291-1293 (CA5 1978); United States v. Goldman, 563 F.2d 501, 503-504 (CA1 1977), cert. denied, .In this case, the Court of Appeals recognized that the respondent could be questioned about prior statements inconsistent with his trial testimony. The court therefore approved the "latter portion of the above quoted cross-examination... ." 610 F.2d, at 421. But the Court of Appeals found that "the earlier portion of the exchange" concerned the "separate issu[e]" of the respondent's "failure to tell arresting officers the same story he told the jury." Ibid. In the court's view, these questions were unconstitutional inquiries about postarrest silence. Thus, the Court of Appeals divided the cross-examination into two parts. It then applied Doyle to bar questions that concerned the respondent's failure to tell the police the story he recounted at trial.We do not believe that the cross-examination in this case can be bifurcated so neatly. The quoted colloquy, taken as a whole, does "not refe[r] to the [respondent's] exercise of his right to remain silent; rather [it asks] the [respondent] why, if [his trial testimony] were true, he didn't tell the officer that he stole the decedent's car from the tire store parking lot instead of telling him that he took it from the street." 58 Mich. App., at 381, 227 N. W. 2d, at 354. Any ambiguity in the prosecutor's initial questioning was quickly resolved by explicit reference to Detective LeVanseler's testimony, which the jury had heard only a few hours before. The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.We conclude that Doyle does not apply to the facts of this case. Each of two inconsistent descriptions of events may be said to involve "silence" insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of "silence," and we find no reason to adopt such a view in this case.The judgment of the Court of Appeals is Reversed.MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissents and would affirm the judgment of the Court of Appeals for the reasons stated in its opinion. |
3 | After petitioner city imposed more rigorous demands each of the five times it rejected applications to develop a parcel of land owned by respondent Del Monte Dunes and its predecessor in interest, Del Monte Dunes brought this suit under 42 U. S. C. §1983. The District Court submitted the case to the jury on Del Monte Dunes' theory that the city effected a regulatory taking or otherwise injured the property by unlawful acts, without paying compensation or providing an adequate postdeprivation remedy for the loss. The court instructed the jury to find for Del Monte Dunes if it found either that Del Monte Dunes had been denied all economically viable use of its property or that the city's decision to reject the final development proposal did not substantially advance a legitimate public purpose. The jury found for Del Monte Dunes. In affirming, the Ninth Circuit ruled, inter alia, that the District Court did not err in allowing Del Monte Dunes' takings claim to be tried to a jury, because Del Monte Dunes had a right to a jury trial under §1983; that whether Del Monte Dunes had been denied all economically viable use of the property and whether the city's denial of the final proposal substantially advanced legitimate public interests were, on the facts of this case, questions suitable for the jury; and that the jury reasonably could have decided each of these questions in Del Monte Dunes' favor.Held: The judgment is affirmed.95 F. 3d 1422, affirmed. Justice Kennedy delivered the opinion of the Court, except as to Part IV-A-2, concluding that: 1. The Ninth Circuit's discussion of the rough-proportionality standard of Dolan v. City of Tigard,512 U. S. 374, 391, is irrelevant to this Court's disposition of the case. Although this Court believes the Dolan standard is inapposite to a case such as this one, the jury instructions did not mention proportionality, let alone require the jury to find for Del Monte Dunes unless the city's actions were roughly proportional to its asserted interests. The rough-proportionality discussion, furthermore, was unnecessary to sustain the jury's verdict, given the Ninth Circuit's holding that Del Monte Dunes had proffered evidence sufficient to rebut each of the city's reasons for denying the final development plan. Pp. 10-11. 2. In holding that the jury could have found the city's denial of the final development plan not reasonably related to legitimate public interests, the Ninth Circuit did not impermissibly adopt a rule allowing wholesale interference by judge or jury with municipal land-use policies, laws, or routine regulatory decisions. As the city itself proposed the essence of the jury instructions, it cannot now contend that these instructions did not provide an accurate statement of the law. In any event, the instructions are consistent with this Court's previous general discussions of regulatory takings liability. See, e.g., Agins v. City of Tiburon,447 U. S. 255, 260. Given that the city did not challenge below the applicability or continued viability of these authorities, the Court declines the suggestions of amici to revisit them. To the extent the city contends the District Court's judgment was based upon a jury determination of the reasonableness of its general zoning laws or land-use policies, its argument can be squared neither with the jury instructions nor the theory on which the case was tried, which were confined to the question whether, in light of the case's history and context, the city's particular decision to deny Del Monte Dunes' final development proposal was reasonably related to the city's proffered justifications. To the extent the city argues that, as a matter of law, its land-use decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles and is rejected. Pp. 12-15. 3. The District Court properly submitted the question of liability on Del Monte Dunes' regulatory takings claim to the jury. Pp. 15-19, 27-32. (a) The propriety of such submission depends on whether Del Monte Dunes had a statutory or constitutional right to a jury trial, and, if it did, the nature and extent of the right. Because §1983 does not itself confer the jury right when it authorizes "an action at law" to redress deprivation of a federal right under color of state law, the constitutional question must be reached. The Court's interpretation of the Seventh Amendment — which provides that "[i]n Suits at common law, ... the right of trial by jury shall be preserved"--has been guided by historical analysis comprising two principal inquiries: (1) whether the cause of action either was tried at law at the time of the founding or is at least analogous to one that was, and (2) if so, whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791. Markman v. Westview Instruments, Inc.,517 U. S. 370, 376. Pp. 15-17. (b) Del Monte Dunes' §1983 suit is an action at law for Seventh Amendment purposes. Pp. 17-19. (1) That Amendment applies not only to common-law causes of action but also to statutory causes of action analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty. E.g., Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 348. P. 17. (2) A §1983 suit seeking legal relief is an action at law within the Seventh Amendment's meaning. It is undisputed that when the Amendment was adopted there was no action equivalent to §1983. It is settled law, however, that the Amendment's jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to "soun[d] basically in tort," and seek legal relief. Curtis v. Loether,415 U. S. 189, 195-196. There can be no doubt that §1983 claims sound in tort. See, e.g.,Heck v. Humphrey,512 U. S. 477, 483. Here Del Monte Dunes sought legal relief in the form of damages for the unconstitutional denial of just compensation. Damages for a constitutional violation are a legal remedy. See, e.g.,Teamsters v. Terry,494 U. S. 558, 570. Pp. 17-19. (c) The particular liability issues were proper for determination by the jury. Pp. 27-30. (1) In making this determination, the Court looks to history to determine whether the particular issues, or analogous ones, were decided by judge or by jury in suits at common law at the time the Seventh Amendment was adopted. Where history does not provide a clear answer, the Court looks to precedent and functional considerations. Markman, supra, at 384. P. 27. (2) There is no precise analogue for the specific test of liability submitted to the jury in this case, although some guidance is provided by the fact that, in suits sounding in tort for money damages, questions of liability were usually decided by the jury, rather than the judge. P. 27. (3) None of the Court's regulatory takings precedents has addressed the proper allocation of liability determinations between judge and jury in explicit terms. In Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,473 U. S. 172, 191, the Court assumed the propriety of submitting to the jury the question whether a county planning commission had denied the plaintiff landowner all economically viable use of the property. However, because Williamson is not a direct holding, further guidance must be found in considerations of process and function. Pp. 28-29. (4) In actions at law otherwise within the purview of the Seventh Amendment, the issue whether a landowner has been deprived of all economically viable use of his property is for the jury. The issue is predominantly factual, e.g.,Pennsylvania Coal Co. v. Mahon,260 U. S. 393, 413, and in actions at law such issues are in most cases allocated to the jury, see, e.g.,Baltimore & Carolina Line, Inc. v. Redman,295 U. S. 654, 657. Pp. 29-30. (5) Although the question whether a land-use decision substantially advances legitimate public interests is probably best understood as a mixed question of fact and law, here, the narrow question submitted to the jury was whether, when viewed in light of the context and protracted history of the development application process, the city's decision to reject a particular development plan bore a reasonable relationship to its proffered justifications. This question was essentially fact-bound in nature, and thus was properly submitted to the jury. P. 30. (d) This Seventh Amendment holding is limited in various respects: It does not address the jury's role in an ordinary inverse condemnation suit, or attempt a precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests that would extend to other contexts. Del Monte Dunes' argument was not that the city had followed its zoning ordinances and policies but rather that it had not done so. As is often true in §1983 actions, the disputed questions were whether the government had denied a constitutional right in acting outside the bounds of its authority, and, if so, the extent of any resulting damages. These were questions for the jury. Pp. 30-32. Justice Kennedy, joined by The Chief Justice, Justice Stevens, and Justice Thomas, concluded in Part IV-A-2 that the city's request to create an exception to the general Seventh Amendment rule governing §1983 actions for claims alleging violations of the Fifth Amendment Takings Clause must be rejected. Pp. 19-27. 1. This Court has declined in other contexts to classify §1983 actions based on the nature of the underlying right asserted, and the city provides no persuasive justification for adopting a different rule for Seventh Amendment purposes. P. 20. 2. Even when analyzed not as a §1983 action simpliciter, but as a §1983 action seeking redress for an uncompensated taking, Del Monte Dunes' suit remains an action at law. Contrary to the city's submission, a formal condemnation proceeding — as to which the Court has said there is no constitutional jury right, e.g.,United States v. Reynolds,397 U. S. 14, 18 — is not the controlling analogy here. That analogy is rendered inapposite by fundamental differences between a condemnation proceeding and a §1983 action to redress an uncompensated taking. Most important, when the government initiates condemnation proceedings, it concedes the landowner's right to receive just compensation and seeks a mere determination of the amount of compensation due. Liability simply is not an issue. This difference renders the analogy not only unhelpful but inapposite. See, e.g.,Bonaparte v. Camden & Amboy R. Co., 3 F. Cas. 821, 829 (No. 1, 617) (CC NJ). Moreover, when the government condemns property for public use, it provides the landowner a forum for seeking just compensation as is required by the Constitution. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,482 U. S. 304, 316. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government's actions are neither unconstitutional nor unlawful. E.g.,Williamson, supra, at 195. In this case, however, Del Monte Dunes was denied not only its property but also just compensation or even an adequate forum for seeking it. In these circumstances, the original understanding of the Takings Clause and historical practice support the conclusion that the cause of action sounds in tort and is most analogous to the various actions that lay at common law to recover damages for interference with property interests. In such common-law actions, there was a right to trial by jury. See, e.g., Feltner, supra, at 349. The city's argument that because the Constitution allows the government to take property for public use, a taking for that purpose cannot be tortious or unlawful, is rejected. When the government repudiates its duty to provide just compensation, see, e.g.,First English,supra, at 315, it violates the Constitution, and its actions are unlawful and tortious. Pp. 20-27. Justice Scalia concluded: 1. The Seventh Amendment provides respondents with a right to a jury trial on their §1983 claim. All §1983 actions must be treated alike insofar as that right is concerned. Section 1983 establishes a unique, or at least distinctive, cause of action, in that the legal duty which is the basis for relief is ultimately defined not by the claim-creating statute itself, but by an extrinsic body of law to which the statute refers, namely "federal rights elsewhere conferred." Baker v. McCollan, 443 U. S. 137, 144, n. 3. The question before the Court then is not what common-law action is most analogous to some generic suit seeking compensation for a Fifth Amendment taking, but what common-law action is most analogous to a §1983 claim. This Court has concluded that all §1983 claims should be characterized in the same way, Wilson v. Garcia, 471 U. S. 261, 271-272, as tort actions for the recovery of damages for personal injuries, id., at 276. Pp. 1-5. 2. It is clear that a §1983 cause of action for damages is a tort action for which jury trial would have been provided at common law. See, e.g.,Curtis v. Loether, 415 U. S. 189, 195. Pp. 5-8. 3. The trial court properly submitted the particular issues raised by respondents' §1983 claim to the jury. The question whether they were deprived of all economically viable use of their property presents primarily a question of fact appropriate for jury consideration. As to the question whether petitioner's rejection of respondents' building plans substantially advanced a legitimate public purpose, the subquestion whether the government's asserted basis for its challenged action represents a legitimate state interest was properly removed from the jury's cognizance, but the subquestion whether that legitimate state interest is substantially furthered by the challenged government action is, at least in the highly particularized context of the present case, a jury question. Pp. 8-10. Kennedy, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, the opinion of the Court with respect to Parts III, IV-A-1, IV-B, IV-C, and V, in which Rehnquist, C. J., and Stevens, Scalia, and Thomas, JJ., joined, and an opinion with respect to Part IV-A-2, in which Rehnquist, C. J., and Stevens and Thomas, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed an opinion concurring in part and dissenting in part, in which O'Connor, Ginsburg, and Breyer, JJ., joined. CITY OF MONTEREY, PETITIONER v. DEL MONTEDUNES AT MONTEREY, LTD., and MONTEREY-DEL MONTE DUNES CORPORATIONon writ of certiorari to the united states court ofappeals for the ninth circuit[May 24, 1999] Justice Kennedy delivered the opinion of the Court, except as to Part IV-A-2. This case began with attempts by the respondent, Del Monte Dunes, and its predecessor in interest to develop a parcel of land within the jurisdiction of the petitioner, the city of Monterey. The city, in a series of repeated rejections, denied proposals to develop the property, each time imposing more rigorous demands on the developers. Del Monte Dunes brought suit in the United States District Court for the Northern District of California, under Rev. Stat. §1979, 42 U. S. C. §1983. After protracted litigation, the case was submitted to the jury on Del Monte Dunes' theory that the city effected a regulatory taking or otherwise injured the property by unlawful acts, without paying compensation or providing an adequate postdeprivation remedy for the loss. The jury found for Del Monte Dunes, and the Court of Appeals affirmed. The petitioner contends that the regulatory takings claim should not have been decided by the jury and that the Court of Appeals adopted an erroneous standard for regulatory takings liability. We need not decide all of the questions presented by the petitioner, nor need we examine each of the points given by the Court of Appeals in its decision to affirm. The controlling question is whether, given the city's apparent concession that the instructions were a correct statement of the law, the matter was properly submitted to the jury. We conclude that it was,and that the judgment of the Court of Appeals should be affirmed.IA The property which respondent and its predecessor in interest (landowners) sought to develop was a 37.6 acre ocean-front parcel located in the city of Monterey, at or near the city's boundary to the north, where Highway 1 enters. With the exception of the ocean and a state park located to the northeast, the parcel was virtually surrounded by a railroad right-of-way and properties devoted to industrial, commercial, and multifamily residential uses. The parcel itself was zoned for multifamily residential use under the city's general zoning ordinance. The parcel had not been untouched by its urban and industrial proximities. A sewer line housed in 15-foot man-made dunes covered with jute matting and surrounded by snow fencing traversed the property. Trash, dumped in violation of the law, had accumulated on the premises. The parcel had been used for many years by an oil company as a terminal and tank farm where large quantities of oil were delivered, stored, and reshipped. When the company stopped using the site, it had removed its oil tanks but left behind tank pads, an industrial complex, pieces of pipe, broken concrete, and oil-soaked sand. The company had introduced nonnative ice plant to prevent erosion and to control soil conditions around the oil tanks. Ice plant secretes a substance that forces out other plants and is not compatible with the parcel's natural flora. By the time the landowners sought to develop the property, ice plant had spread to some 25 percent of the parcel, and, absent human intervention, would continue to advance, endangering and perhaps eliminating the parcel's remaining natural vegetation. The natural flora the ice plant encroached upon included buckwheat, the natural habitat of the endangered Smith's Blue Butterfly. The butterfly lives for one week, travels a maximum of 200 feet, and must land on a mature, flowering buckwheat plant to survive. Searches for the butterfly from 1981 through 1985 yielded but a single larva, discovered in 1984. No other specimens had been found on the property, and the parcel was quite isolated from other possible habitats of the butterfly.B In 1981 the landowners submitted an application to develop the property in conformance with the city's zoning and general plan requirements. Although the zoning requirements permitted the development of up to 29 housing units per acre, or more than 1,000 units for the entire parcel, the landowners' proposal was limited to 344 residential units. In 1982 the city's planning commission denied the application but stated that a proposal for 264 units would receive favorable consideration. In keeping with the suggestion, the landowners submitted a revised proposal for 264 units. In late 1983, however, the planning commission again denied the application. The commission once more requested a reduction in the scale of the development, this time saying a plan for 224 units would be received with favor. The landowners returned to the drawing board and prepared a proposal for 224 units, which, its previous statements notwithstanding, the planning commission denied in 1984. The landowners appealed to the city council, which overruled the planning commission's denial and referred the project back to the commission, with instructions to consider a proposal for 190 units. The landowners once again reduced the scope of their development proposal to comply with the city's request, and submitted four specific, detailed site plans, each for a total of 190 units for the whole parcel. Even so, the planning commission rejected the landowners' proposal later in 1984. Once more the landowners appealed to the city council. The council again overruled the commission, finding the proposal conceptually satisfactory and in conformance with the city's previous decisions regarding, inter alia, density, number of units, location on the property, and access. The council then approved one of the site plans, subject to various specific conditions, and granted an 18-month conditional use permit for the proposed development. The landowners spent most of the next year revising their proposal and taking other steps to fulfill the city's conditions. Their final plan, submitted in 1985, devoted 17.9 of the 37.6 acres to public open space (including a public beach and areas for the restoration and preservation of the buckwheat habitat), 7.9 acres to open, landscaped areas, and 6.7 acres to public and private streets (including public parking and access to the beach). Only 5.1 acres were allocated to buildings and patios. The plan was designed, in accordance with the city's demands, to provide the public with a beach, a buffer zone between the development and the adjoining state park, and view corridors so the buildings would not be visible to motorists on the nearby highway; the proposal also called for restoring and preserving as much of the sand dune structure and buckwheat habitat as possible consistent with development and the city's requirements. After detailed review of the proposed buildings, roads, and parking facilities, the city's architectural review committee approved the plan. Following hearings before the planning commission, the commission's professional staff found the final plan addressed and substantially satisfied the city's conditions. It proposed the planning commission make specific findings to this effect and recommended the plan be approved. In January 1986, less than two months before the landowners' conditional use permit was to expire, the planning commission rejected the recommendation of its staff and denied the development plan. The landowners appealed to the city council, also requesting a 12-month extension of their permit to allow them time to attempt to comply with any additional requirements the council might impose. The permit was extended until a hearing could be held before the city council in June 1986. After the hearing, the city council denied the final plan, not only declining to specify measures the landowners could take to satisfy the concerns raised by the council but also refusing to extend the conditional use permit to allow time to address those concerns. The council's decision, moreover, came at a time when a sewer moratorium issued by another agency would have prevented or at least delayed development based on a new plan. The council did not base its decision on the landowners' failure to meet any of the specific conditions earlier prescribed by the city. Rather, the council made general findings that the landowners had not provided adequate access for the development (even though the landowners had twice changed the specific access plans to comply with the city's demands and maintained they could satisfy the city's new objections if granted an extension), that the plan's layout would damage the environment (even though the location of the development on the property was necessitated by the city's demands for a public beach, view corridors, and a buffer zone next to the state park), and that the plan would disrupt the habitat of the Smith's Blue Butterfly (even though the plan would remove the encroaching ice plant and preserve or restore buckwheat habitat on almost half of the property, and even though only one larva had ever been found on the property).C After five years, five formal decisions, and 19 different site plans, 10 Tr. 1294-1295 (Feb. 9, 1994), respondent Del Monte Dunes decided the city would not permit development of the property under any circumstances. Del Monte Dunes commenced suit against the city in the United States District Court for the Northern District of California under 42 U. S. C. §1983, alleging, inter alia, that denial of the final development proposal was a violation of the Due Process and Equal Protection provisions of the Fourteenth Amendment and an uncompensated, and so unconstitutional, regulatory taking. The District Court dismissed the claims as unripe under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,473 U. S. 172 (1985), on the grounds that Del Monte Dunes had neither obtained a definitive decision as to the development the city would allow nor sought just compensation in state court. The Court of Appeals reversed. 920 F. 2d 1496 (CA9 1990). After reviewing at some length the history of attempts to develop the property, the court found that to require additional proposals would implicate the concerns about repetitive and unfair procedures expressed in MacDonald, Sommer & Frates v. Yolo County,477 U. S. 340, 350, n. 7 (1986), and that the city's decision was sufficiently final to render Del Monte Dunes' claim ripe for review. 920 F. 2d, at 1501-1506. The court also found that because the State of California had not provided a compensatory remedy for temporary regulatory takings when the city issued its final denial, see First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,482 U. S. 304 (1987), Del Monte Dunes was not required to pursue relief in state court as a precondition to federal relief. See 920 F. 2d, at 1506-1507. On remand, the District Court determined, over the city's objections, to submit Del Monte Dunes' takings and equal protection claims to a jury but to reserve the substantive due process claim for decision by the court. Del Monte Dunes argued to the jury that, although the city had a right to regulate its property, the combined effect of the city's various demands — that the development be invisible from the highway, that a buffer be provided between the development and the state park, and that the public be provided with a beach — was to force development into the "bowl" area of the parcel. As a result, Del Monte Dunes argued, the city's subsequent decision that the bowl contained sensitive buckwheat habitat which could not be disturbed blocked the development of any portion of the property. See 10 Tr. 1288-1294, 1299-1302, 1317 (Feb. 9, 1994). While conceding the legitimacy of the city's stated regulatory purposes, Del Monte Dunes emphasized the tortuous and protracted history of attempts to develop the property, as well as the shifting and sometimes inconsistent positions taken by the city throughout the process, and argued that it had been treated in an unfair and irrational manner. Del Monte Dunes also submitted evidence designed to undermine the validity of the asserted factual premises for the city's denial of the final proposal and to suggest that the city had considered buying, or inducing the State to buy, the property for public use as early as 1979, reserving some money for this purpose but delaying or abandoning its plans for financial reasons. See id., at 1303-1306. The State of California's purchase of the property during the pendency of the litigation may have bolstered the credibility of Del Monte Dunes' position. At the close of argument, the District Court instructed the jury it should find for Del Monte Dunes if it found either that Del Monte Dunes had been denied all economically viable use of its property or that "the city's decision to reject the plaintiff's 190 unit development proposal did not substantially advance a legitimate public purpose." App. 303. With respect to the first inquiry, the jury was instructed, in relevant part, as follows:"For the purpose of a taking claim, you will find that the plaintiff has been denied all economically viable use of its property, if, as the result of the city's regulatory decision there remains no permissible or beneficial use for that property. In proving whether the plaintiff has been denied all economically viable use of its property, it is not enough that the plaintiff show that after the challenged action by the city the property diminished in value or that it would suffer a serious economic loss as the result of the city's actions." Ibid.With respect to the second inquiry, the jury received the following instruction: "Public bodies, such as the city, have the authority to take actions which substantially advance legitimate public interest[s] and legitimate public interest[s] can include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development. So one of your jobs as jurors is to decide if the city's decision here substantially advanced any such legitimate public purpose. "The regulatory actions of the city or any agency substantially advanc[e] a legitimate public purpose if the action bears a reasonable relationship to that objective. "Now, if the preponderance of the evidence establishes that there was no reasonable relationship between the city's denial of the ... proposal and legitimate public purpose, you should find in favor of the plaintiff. If you find that there existed a reasonable relationship between the city's decision and a legitimate public purpose, you should find in favor of the city. As long as the regulatory action by the city substantially advances their legitimate public purpose, ... its underlying motives and reasons are not to be inquired into." Id., at 304.The essence of these instructions was proposed by the city. See Tr. 11 (June 17, 1994). The jury delivered a general verdict for Del Monte Dunes on its takings claim, a separate verdict for Del Monte Dunes on its equal protection claim, and a damages award of $1.45 million. Tr. 2 (Feb. 17, 1994). After the jury's verdict, the District Court ruled for the city on the substantive due process claim, stating that its ruling was not inconsistent with the jury's verdict on the equal protection or the takings claim. App. to Pet. for Cert. A-39. The court later denied the city's motions for a new trial or for judgment as a matter of law. The Court of Appeals affirmed. 95 F. 3d 1422 (CA9 1996). The court first ruled that the District Court did not err in allowing Del Monte Dunes' regulatory takings claim to be tried to a jury, id., at 1428, because Del Monte Dunes had a right to a jury trial under §1983, id., at 1426-1427, and whether Del Monte Dunes had been denied all economically viable use of the property and whether the city's denial of the final proposal substantially advanced legitimate public interests were, on the facts of this case, questions suitable for the jury, id., at 1430. The court ruled that sufficient evidence had been presented to the jury from which it reasonably could have decided each of these questions in Del Monte Dunes' favor. Id., at 1430-1434. Because upholding the verdict on the regulatory takings claim was sufficient to support the award of damages, the court did not address the equal protection claim. Id., at 1426. The questions presented in the city's petition for certiorari were (1) whether issues of liability were properly submitted to the jury on Del Monte Dunes' regulatory takings claim, (2) whether the Court of Appeals impermissibly based its decision on a standard that allowed the jury to reweigh the reasonableness of the city's land-use decision, and (3) whether the Court of Appeals erred in assuming that the rough-proportionality standard of Dolan v. City of Tigard,512 U. S. 374 (1994), applied to this case. We granted certiorari, 523 U. S. 1045 (1998), and now address these questions in reverse order.II In the course of holding a reasonable jury could have found the city's denial of the final proposal not substantially related to legitimate public interests, the Court of Appeals stated: "[e]ven if the City had a legitimate interest in denying Del Monte's development application, its action must be `roughly proportional' to furthering that interest... . That is, the City's denial must be related `both in nature and extent to the impact of the proposed development.' " 95 F. 3d, at 1430, quoting Dolan, supra, at 391. Although in a general sense concerns for proportionality animate the Takings Clause, see Armstrong v. United States,364 U. S. 40, 49 (1960) ("The Fifth Amendment's guarantee ... was designed to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"), we have not extended the rough-proportionality test of Dolan beyond the special context of exactions — land-use decisions conditioning approval of development on the dedication of property to public use. See Dolan, supra, at 385; Nollan v. California Coastal Comm'n,483 U. S. 825, 841 (1987). The rule applied in Dolan considers whether dedications demanded as conditions of development are proportional to the development's anticipated impacts. It was not designed to address, and is not readily applicable to, the much different questions arising where, as here, the landowner's challenge is based not on excessive exactions but on denial of development. We believe, accordingly, that the rough-proportionality test of Dolan is inapposite to a case such as this one. The instructions given to the jury, however, did not mention proportionality, let alone require it to find for Del Monte Dunes unless the city's actions were roughly proportional to its asserted interests. The Court of Appeals' discussion of rough proportionality, we conclude, was unnecessary to its decision to sustain the jury's verdict. Although the court stated that "[s]ignificant evidence supports Del Monte's claim that the City's actions were disproportional to both the nature and extent of the impact of the proposed development," 95 F. 3d, at 1432, it did so only after holding that"Del Monte provided evidence sufficient to rebut each of these reasons [for denying the final proposal]. Taken together, Del Monte argued that the City's reasons for denying their application were invalid and that it unfairly intended to forestall any reasonable development of the Dunes. In light of the evidence proffered by Del Monte, the City has incorrectly argued that no rational juror could conclude that the City's denial of Del Monte's application lacked a sufficient nexus with its stated objectives." Id., at 1431-1432.Given this holding, it was unnecessary for the Court of Appeals to discuss rough proportionality. That it did so is irrelevant to our disposition of the case.III The city challenges the Court of Appeals' holding that the jury could have found the city's denial of the final development plan not reasonably related to legitimate public interests. Although somewhat obscure, the city's argument is not cast as a challenge to the sufficiency of the evidence; rather, the city maintains that the Court of Appeals adopted a legal standard for regulatory takings liability that allows juries to second-guess public land-use policy. As the city itself proposed the essence of the instructions given to the jury, it cannot now contend that the instructions did not provide an accurate statement of the law. In any event, although this Court has provided neither a definitive statement of the elements of a claim for a temporary regulatory taking nor a thorough explanation of the nature or applicability of the requirement that a regulation substantially advance legitimate public interests outside the context of required dedications or exactions, cf., e.g.,Nollan, supra, at 834-835, n. 3, we note that the trial court's instructions are consistent with our previous general discussions of regulatory takings liability. See Dolan,supra, at 385; Lucas v. South Carolina Coastal Council,505 U. S. 1003, 1016 (1992); Yee v. Escondido,503 U. S. 519, 534 (1992); Nollan,supra, at 834; Keystone Bituminous Coal Assn. v. DeBenedictis,480 U. S. 470, 485 (1987); United States v. Riverside Bayview Homes, Inc.,474 U. S. 121, 126 (1985); Agins v. City of Tiburon,447 U. S. 255, 260 (1980). The city did not challenge below the applicability or continued viability of the general test for regulatory takings liability recited by these authori-ties and upon which the jury instructions appear to have been modeled. Given the posture of the case before us,we decline the suggestions of amici to revisit theseprecedents. To the extent the city contends the judgment sustained by the Court of Appeals was based upon a jury determination of the reasonableness of its general zoning laws or land-use policies, its argument can be squared neither with the instructions given to the jury nor the theory on which the case was tried. The instructions did not ask the jury whether the city's zoning ordinances or policies were unreasonable but only whether "the City's decision to reject the plaintiff's 190 unit development proposal did not substantially advance a legitimate public purpose," App. 303, that is, whether "there was no reasonable relationship between the city's denial of the ... proposal and legitimate public purpose." Id., at 304. Furthermore, Del Monte Dunes' lawyers were explicit in conceding that "[t]his case is not about the right of a city, in this case the city of Monterey, to regulate land." 10 Tr. 1286 (Feb. 9, 1994). See also id., at 1287 (proposals were made "keeping in mind various regulations and requirements, heights, setbacks, and densities and all that. That's not what this case is about"); id., at 1287-1288 ("They have the right to set height limits. They have the right to talk about where they want access. That's not what this case is about. We all accept that in today's society, cities and counties can tell a land owner what to do to some reasonable extent with their property"). Though not presented for review, Del Monte Dunes' equal protection argument that it had received treatment inconsistent with zoning decisions made in favor of owners of similar properties, and the jury's verdict for Del Monte Dunes on this claim, confirm the understanding of the jury and Del Monte Dunes that the complaint was not about general laws or ordinances but about a particular zoning decision. The instructions regarding the city's decision also did not allow the jury to consider the reasonableness, per se, of the customized, ad hoc conditions imposed on the property's development, and Del Monte Dunes did not suggest otherwise. On the contrary, Del Monte Dunes disclaimed this theory of the case in express terms: "Del Monte Dunes partnership did not file this lawsuit because they were complaining about giving the public the beach, keeping it [the development] out of the view shed, devoting and [giving] to the State all this habitat area. One-third [of the] property is going to be given away for the public use forever. That's not what we filed the lawsuit about." Id., at 1288; see also id., at 1288-1289 (conceding that the city may "ask an owner to give away a third of the property without getting a dime in compensation for it and providing parking lots for the public and habitats for the butterfly, and boardwalks"). Rather, the jury was instructed to consider whether the city's denial of the final proposal was reasonably related to a legitimate public purpose. Even with regard to this issue, however, the jury was not given free rein to second-guess the city's land-use policies. Rather, the jury was instructed, in unmistakable terms, that the various purposes asserted by the city were legitimate public interests. See App. 304. The jury, furthermore, was not asked to evaluate the city's decision in isolation but rather in context, and, in particular, in light of the tortuous and protracted history of attempts to develop the property. See, e.g., 10 Tr. 1294-1295 (Feb. 9, 1994). Although Del Monte Dunes was allowed to introduce evidence challenging the asserted factual bases for the city's decision, it also highlighted the shifting nature of the city's demands and the inconsistency of its decision with the recommendation of its professional staff, as well as with its previous decisions. See, e.g.,id., at 1300. Del Monte Dunes also introduced evidence of the city's longstanding interest in acquiring the property for public use. See, e.g.,id., at 1303-1306. In short, the question submitted to the jury on this issue was confined to whether, in light of all the history and the context of the case, the city's particular decision to deny Del Monte Dunes' final development proposal was reasonably related to the city's proffered justifications. This question was couched, moreover, in an instruction that had been proposed in essence by the city, and as to which the city made no objection. Thus, despite the protests of the city and its amici, it is clear that the Court of Appeals did not adopt a rule of takings law allowing wholesaleinterference by judge or jury with municipal land-use policies, laws, or routine regulatory decisions. To the extent the city argues that, as a matter of law, its land-use decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles. We reject this claim of error.IV We next address whether it was proper for the District Court to submit the question of liability on Del Monte Dunes' regulatory takings claim to the jury. (Before the District Court, the city agreed it was proper for the jury to assess damages. See Supplemental Memorandum of Petitioner Re: Court/Jury Trial Issues in No. C86-5042 (ND Cal.), p. 2, Record, Doc. No. 111.) As the Court of Appeals recognized, the answer depends on whether Del Monte Dunes had a statutory or constitutional right to a jury trial, and, if it did, the nature and extent of the right. Del Monte Dunes asserts the right to a jury trial is conferred by §1983 and by the Seventh Amendment. Under our precedents, "[b]efore inquiring into the applicability of the Seventh Amendment, we must `first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.' " Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 345 (1998) (quoting Tull v. United States,481 U. S. 412, 417, n. 3 (1987)); accord Curtis v. Loether,415 U. S. 189, 192, n. 6 (1974). The character of §1983 is vital to our Seventh Amendment analysis, but the statute does not itself confer the jury right. See Feltner, supra, at 345 (quoting Tull, supra, at, 417, n. 3) ("[W]e cannot discern `any congressional intent to grant ... the right to a jury trial' "). Section 1983 authorizes a party who has been deprived of a federal right under the color of state law to seek relief through "an action at law, suit in equity, or other proper proceeding for redress." Del Monte Dunes contends that the phrase "action at law" is a term of art implying a right to a jury trial. We disagree, for this is not a necessary implication. In Lorillard v. Pons, 434 U. S. 575, 583 (1978), we found a statutory right to a jury trial in part because the statute authorized "legal ... relief." Our decision, however, did not rest solely on the statute's use of the phrase but relied as well on the statute's explicit incorporation of the procedures of the Fair Labor Standards Act, which had been interpreted to guarantee trial by jury in private actions. Id., at 580. We decline, accordingly, to find a statutory jury right under §1983 based solely on the authorization of "an action at law." As a consequence, we must reach the constitutional question. The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ... ." Consistent with the textual mandate that the jury right be preserved, our interpretation of the Amendment has been guided by historical analysis comprising two principal inquiries. "[W]e ask, first, whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was." Markman v. Westview Instruments, Inc.,517 U. S. 370, 376 (1996). "If the action in question belongs in the law category, we then ask whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791." Ibid.A With respect to the first inquiry, we have recognized that "suits at common law" include "not merely suits, which the common law recognized among its old and settled proceedings, but [also] suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered." Parsons v. Bedford, 3 Pet. 433, 447 (1830). The Seventh Amendment thus applies not only to common-law causes of action but also to statutory causes of action " `analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century, as opposed to those customarily heard by courts of equity or admiralty.' " Feltner, supra, at 348 (quoting Granfinanciera, S. A. v. Nordberg,492 U. S. 33, 42 (1989)); accord Curtis, supra, at 193.1 Del Monte Dunes brought this suit pursuant to §1983 to vindicate its constitutional rights. We hold that a §1983 suit seeking legal relief is an action at law within the meaning of the Seventh Amendment. Justice Scalia's concurring opinion presents a comprehensive and convincing analysis of the historical and constitutional reasons for this conclusion. We agree with his analysis and conclusion. It is undisputed that when the Seventh Amendment was adopted there was no action equivalent to §1983, framed in specific terms for vindicating constitutional rights. It is settled law, however, that the Seventh Amendment jury guarantee extends to statutory claims unknown to the common law, so long as the claims can be said to "soun[d] basically in tort," and seek legal relief. Curtis, 415 U. S., at 195-196. As Justice Scalia explains, see post, at 5-8, there can be no doubt that claims brought pursuant to §1983 sound in tort. Just as common-law tort actions provide redress for interference with protected personal or property interests, §1983 provides relief for invasions of rights protected under federal law. Recognizing the essential character of the statute, " `[w]e have repeatedly noted that 42 U. S. C. §1983 creates a species of tort liability,' " Heck v. Humphrey,512 U. S. 477, 483 (1994) (quoting Memphis Community School Dist. v. Stachura,477 U. S. 299, 305 (1986)), and have interpreted the statute in light of the "background of tort liability," Monroe v. Pape,365 U. S. 167, 187 (1961) (overruled on other grounds, Monell v. New York City Dept. of Social Servs.,436 U. S. 658 (1978)); accord Heck, supra, at 483. Our settled understanding of §1983 and the Seventh Amendment thus compel the conclusion that a suit for legal relief brought under the statute is an action at law. Here Del Monte Dunes sought legal relief. It was entitled to proceed in federal court under §1983 because, at the time of the city's actions, the State of California did not provide a compensatory remedy for temporary regulatory takings. See First English482 U. S., at 308-311. The constitutional injury alleged, therefore, is not that property was taken but that it was taken without just compensation. Had the city paid for the property or had an adequate postdeprivation remedy been available, Del Monte Dunes would have suffered no constitutional injury from the taking alone. See Williamson, 473 U. S., at 194-195. Because its statutory action did not accrue until it was denied just compensation, in a strict sense Del Monte Dunes sought not just compensation per se but rather damages for the unconstitutional denial of such compensation. Damages for a constitutional violation are a legal remedy. See, e.g.,Teamsters v. Terry,494 U. S. 558, 570 (1990) ("Generally, an action for money damages was `the traditional form of relief offered in the courts of law' ") (quoting Curtis, supra, at 196). Even when viewed as a simple suit for just compensation, we believe Del Monte Dunes' action sought essentially legal relief. "We have recognized the `general rule' that monetary relief is legal." Feltner, 523 U. S., at 352 (quoting Teamsters v. Terry, supra, at 570). Just compensation, moreover, differs from equitable restitution and other monetary remedies available in equity, for in determining just compensation, "the question is what has the owner lost, not what has the taker gained." Boston Chamber of Commerce v. Boston,217 U. S. 189, 195 (1910). As its name suggests, then, just compensation is, like ordinary money damages, a compensatory remedy.The Court has recognized that compensation is a purpose "traditionally associated with legal relief." Feltner, supra, at352. Because Del Monte Dunes' statutory suit sounded in tort and sought legal relief, it was an action at law.2 In attempt to avoid the force of this conclusion, the city urges us to look not to the statutory basis of Del Monte Dunes' claim but rather to the underlying constitutional right asserted. At the very least, the city asks us to create an exception to the general Seventh Amendment rule governing §1983 actions for claims alleging violations of the Takings Clause of the Fifth Amendment. See New Port Largo, Inc. v. Monroe County, 95 F. 3d 1084 (CA11 1996) (finding, in tension with the Ninth Circuit's decision in this case, that there is no right to a jury trial on a takings claim brought under §1983). Because the jury's role in estimating just compensation in condemnation proceedings was inconsistent and unclear at the time the Seventh Amendment was adopted, this Court has said "that there is no constitutional right to a jury in eminent domain proceedings." United States v. Reynolds,397 U. S. 14, 18 (1970); accord, Bauman v. Ross,167 U. S. 548, 593 (1897). The city submits that the analogy to formal condemnation proceedings is controlling, so that there is no jury right here. As Justice Scalia notes, see post, at 3-5, we have declined in other contexts to classify §1983 actions based on the nature of the underlying right asserted, and the city provides no persuasive justification for adopting a different rule for Seventh Amendment purposes. Even when analyzed not as a §1983 action simpliciter, however, but as a §1983 action seeking redress for an uncompensated taking, Del Monte Dunes' suit remains an action at law. Although condemnation proceedings spring from the same Fifth Amendment right to compensation which, as incorporated by the Fourteenth Amendment, is applicable here, see First English, supra, at 315 (citing Jacobs v. United States,290 U. S. 13, 16 (1933)), a condemnation action differs in important respects from a §1983 action to redress an uncompensated taking. Most important, when the government initiates condemnation proceedings, it concedes the landowner's right to receive just compensation and seeks a mere determination of the amount of compensation due. Liability simply is not an issue. As a result, even if condemnation proceedings were an appropriate analogy, condemnation practice would provide little guidance on the specific question whether Del Monte Dunes was entitled to a jury determination of liability. This difference renders the analogy to condemnation proceedings not only unhelpful but also inapposite. When the government takes property without initiating condemnation proceedings, it "shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation." United States v. Clarke,445 U. S. 253, 257 (1980). Even when the government does not dispute its seizure of the property or its obligation to pay for it, the mere "shifting of the initiative from the condemning authority to the condemnee" can place the landowner "at a significant disadvantage." Id., at 258; cf. id., at 255 ("There are important legal and practical differences between an inverse condemnation suit and a condemnation proceeding"); 84 Stat. 1906, §304, 42 U. S. C. §4654 (recognizing, at least implicitly, the added burden by providing for recovery of attorney's fees in cases where the government seizes property without initiating condemnation proceedings but not in ordinary condemnation cases). Where, as here, the government not only denies liability but fails to provide an adequate postdeprivation remedy (thus refusing to submit the question of liability to an impartial arbiter), the disadvantage to the owner becomes all the greater. At least in these circumstances, the analogy to ordinary condemnation procedures is simply untenable. Our conclusion is confirmed by precedent. Early authority finding no jury right in a condemnation proceeding did so on the ground that condemnation did not involve the determination of legal rights because liability was undisputed:"We are therefore of opinion that the trial by jury is preserved inviolate in the sense of the constitution, when in all criminal cases, and in civil cases when a right is in controversy in a court of law, it is secured to each party. In cases of this description [condemnation proceedings], the right to take, and the right to compensation, are admitted; the only question is the amount, which may be submitted to any impartial tribunal the legislature may designate." Bonaparte v. Camden & Amboy Railroad Co., 3 F. Cas. 821, 829 (No. 1, 617) (CCD N. J. 1830) (Baldwin, CircuitJustice). (Although Justice Souter's dissenting opinion takes issue with this distinction, its arguments are unpersuasive. First, it correctly notes that when the government initiates formal condemnation procedures, a landowner may question whether the proposed taking is for public use. The landowner who raises this issue, however, seeks not to establish the government's liability for damages, but to prevent the government from taking his property at all. As the dissent recognizes, the relief desired by a landowner making this contention is analogous not to damages but to an injunction; it should be no surprise, then, that the landowner is not entitled to a jury trial on his entitlement to a remedy that sounds not in law but in equity. Second, the dissent refers to "the diversity of rationales underlying early state cases in which the right of a direct condemnee to a jury trial was considered and decided." Post, at 10-11. The dissent mentions only the rationale that because the government is immune from suit for damages, it can qualify any remedy it provides by dispensing with the right to a jury trial. The cases cited for this proposition — two state-court cases antedating the adoption of the Fourteenth Amendment and an off-point federal case — do not implicate the Fifth Amendment. Even if the sovereign immunity rationale retains its vitality in cases where this Amendment is applicable, cf. First English,482 U. S., at 316, n. 9, it is neither limited to nor coextensive with takings claims. Rather, it would apply to all constitutional suits against the Federal Government or the States, but not to constitutional suits such as this one against municipalities like the city of Monterey. Third, the dissent contends that the distinction we have drawn is absent from our condemnation cases. Even if this were true — and it is not obvious that it is — equally absent from those decisions is any analysis or principle that would extend beyond the narrow context of direct condemnation suits to actions such as this one. Rather, as apparent even from the passages quoted by the dissent, see post, at 4-7 and n. 1, these cases rely only on the Court's perception of historical English and Colonial practice in direct condemnation cases. Nothing in these cases detracts from the authorities cited in this opinion that do support the distinction we draw between direct condemnation and a suit like this one. Finally, the existence of a different historical practice distinguishes direct condemnation from an ordinary tort case in which the defendant concedes liability. See post, at 11, n. 5.) Condemnation proceedings differ from the instant cause of action in another fundamental respect as well. When the government condemns property for public use, it provides the landowner a forum for seeking just compensation, as is required by the Constitution. See First English, supra, at 316. If the condemnation proceedings do not, in fact, deny the landowner just compensation, the government's actions are neither unconstitutional nor unlawful. See Williamson, 473 U. S., at 194 ("The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation"). Even when the government takes property without initiating condemnation proceedings, there is no constitutional violation " `unless or until the state fails to provide an adequate postdeprivation remedy for the property loss.' " Id., at 195 (quoting Hudson v. Palmer,468 U. S. 517, 532, n. 12 (1984)). In this case, however, Del Monte Dunes was denied not only its property but also just compensation or even an adequate forum for seeking it. That is the gravamen of the §1983 claim. In these circumstances, we conclude the cause of action sounds in tort and is most analogous to the various actions that lay at common law to recover damages for interference with property interests. Our conclusion is consistent with the original understanding of the Takings Clause and with historical practice. Early opinions, nearly contemporaneous with the adoption of the Bill of Rights, suggested that when the government took property but failed to provide a means for obtaining just compensation, an action to recover damages for the government's actions would sound in tort. See, e.g.,Lindsay v. Commissioners, 2 Bay 38, 61 (S. C. 1796) (opinion of Waties, J.) ("But suppose they could sue, what would be the nature of the action? It could not be founded on contract, for there was none. It must then be on a tort; it must be an action of trespass, in which the jury would give a reparation in damages. Is not this acknowledging that the act of the legislature [in authorizing uncompensated takings] is a tortious act?") (emphases in original); Gardner v. Village of Newburgh, 2 Johns. Ch. 162, 164, 166 (N. Y. 1816) (Kent, Ch.) (uncompensated governmental interference with property right would support a tort action at law for nuisance). Consistent with this understanding, and as a matter of historical practice, when the government has taken property without providing an adequate means for obtaining redress, suits to recover just compensation have been framed as common-law tort actions. See, e.g.,Richards v. Washington Terminal Co.,233 U. S. 546 (1914) (nuisance); Pumpelly v. Green Bay Co., 13 Wall. 166 (1872) (trespass on the case); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833) (unspecified tort); Bradshaw v. Rodgers, 20 Johns. 103 (N. Y. 1822) (trespass). Tort actions of these descriptions lay at common law, 3 W. Blackstone, Commentaries on the Laws of England, ch. 12 (1768) (trespass; trespass on the case); id., ch. 13 (trespass on the case for nuisance), and in these actions, as in other suits at common law, there was a right to trial by jury, see, e.g., Feltner, 523 U. S., at 349 ("Actions on the case, like other actions at law, were tried before juries"). (Justice Souter's criticism of our reliance on these early authorities misses the point of our analysis. We do not contend that the landowners were always successful. As the dissent makes clear, prior to the adoption of the Fourteenth Amendment and the concomitant incorporation of the Takings Clause against the States, a variety of obstacles — including various traditional immunities, the lack of a constitutional right, and the resulting possibility of legislative justification — stood in the way of the landowner who sought redress for an uncompensated taking. Rather, our point is that the suits were attempted and were understood to sound in tort. It is therefore ironic that the dissent invokes a law review article discussing such suits entitled "The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law." Post, at 15-16 (citing Brauneis, 52 Vand. L. Rev. 57 (1999)). It is true, as the dissenting opinion observes, that claims for just compensation were sometimes brought in quasi contract rather than tort. See, e.g.,United States v. Lynah,188 U. S. 445, 458-465 (1903) (overruled on other grounds, United States v. Chicago, M., St. P. & P. R. Co.,312 U. S. 592 (1941)) (comparing claims for just compensation brought in quasi-contract with just-compensation claims brought in tort). The historical existence of quasi contract suits for just compensation does nothing to undermine our Seventh Amendment analysis, however, since quasi contract was frequently available to the victim of a tort who elected to waive the tort and proceed instead in quasi contract. See, e.g., W. Prosser, Law of Torts §110 (1941). In any event, quasi contract was itself an action at law. See, e.g., 1 G. Palmer, Restitution §§1.2, 2.2-2.3 (1978); F. Woodward, Quasi Contracts §6 (1913).) The city argues that because the Constitution allows the government to take property for public use, a taking for that purpose cannot be tortious or unlawful. We reject this conclusion. Although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government's action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English,482 U. S., at 315 (citing Jacobs,290 U. S., at 16). When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government's actions are not only unconstitutional but unlawful and tortious as well. See Gardner v. Village of Newburgh, supra, at 166, 168 ("[T]o render the exercise of the [eminent domain] power valid," the government must provide landowner "fair compensation"; "[u]ntil, then, some provision be made for affording him compensation, it would be unjust, and contrary to the first principles of government" to deprive plaintiff of his property rights; absent such a provision, the plaintiff "would be entitled to his action at law for the interruption of his right"); Beatty v. United States, 203 F. 620, 626 (CA4 1913) ("The taking of property by condemnation under the power of eminent domain is compulsory. The party is deprived of his property against his will. It is in effect a lawful trespass committed by the sovereign, and lawful only on the condition that the damages inflicted by the trespass are paid to the injured party. The analogy to a suit at common law for trespass is close and complete"). (The argument that an uncompensated taking is not tortious because the landowner seeks just compensation rather than additional damages for the deprivation of a remedy reveals the same misunderstanding. Simply put, there is no constitutional or tortious injury until the landowner is denied just compensation. That the damages to which the landowner is entitled for this injury are measured by the just compensation he has been denied is neither surprising nor significant.) B Having decided Del Monte Dunes' §1983 suit was an action at law, we must determine whether the particular issues of liability were proper for determination by the jury. See Markman v. Westview Instruments, Inc.,517 U. S. 370 (1996). In actions at law, issues that are proper for the jury must be submitted to it "to preserve the right to a jury's resolution of the ultimate dispute," as guaranteed by the Seventh Amendment. Id., at377. We determine whether issues are proper for the jury, when possible, "by using the historical method, much as we do in characterizing the suits and actions within which [the issues] arise." Id., at 378. We look to history to determine whether the particular issues, or analogous ones, were decided by judge or by jury in suits at common law at the time the Seventh Amendment was adopted. Where history does not provide a clear answer, we look to precedent and functional considerations. Id., at 384.1 Just as no exact analogue of Del Monte Dunes' §1983 suit can be identified at common law, so also can we find no precise analogue for the specific test of liability submitted to the jury in this case. We do know that in suits sounding in tort for money damages, questions of liability were decided by the jury, rather than the judge, in most cases. This allocation preserved the jury's role in resolving what was often the heart of the dispute between plaintiff and defendant. Although these general observations provide some guidance on the proper allocation between judge and jury of the liability issues in this case, they do not establish a definitive answer.2 We look next to our existing precedents. Although this Court has decided many regulatory takings cases, none of our decisions has addressed the proper allocation of liability determinations between judge and jury in explicit terms. This is not surprising. Most of our regulatory takings decisions have reviewed suits against the United States, see, e.g.,United States v. Riverside Bayview Homes, Inc.,474 U. S. 121 (1985); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,452 U. S. 264 (1981), suits decided by state courts, see, e.g.,Dolan v. City of Tigard,512 U. S. 374 (1994); Lucas v. South Carolina Coastal Council,505 U. S. 1003 (1992); Nollan v. California Coastal Comm'n,483 U. S. 825 (1987); First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987), or suits seeking only injunctive relief, see, e.g.,Keystone Bituminous Coal Assn. v. DeBenedictis,480 U. S. 470 (1987). It is settled law that the Seventh Amendment does not apply in these contexts. Lehman v. Nakshian,453 U. S. 156, 160 (1981) (suits against the United States); Curtis, 415 U. S., at192, n. 6 (suits brought in state court); Parsons, 3 Pet.,at 447 (suits seeking only equitable relief). In Williamson, we did review a regulatory takings case in which the plaintiff landowner sued a county planning commission in federal court for money damages under §1983. 473 U. S., at 182. Whether the commission had denied the plaintiff all economically viable use of the property had been submitted to the jury. Id., at 191, and n. 12. Although the Court did not consider the point, it assumed the propriety of this procedure. E.g., id., at 191 ("It is not clear whether the jury would have found that the respondent had been denied all reasonable beneficial use of the property had any of the eight objections been met through the grant of a variance... . Accordingly, until the Commission determines that no variances will be granted, it is impossible for the jury to find, on this record, whether respondent `will be unable to derive economic benefit' from the land"). Williamson is not a direct holding, however, and we must look for further guidance. We turn next to considerations of process and function.3 In actions at law predominantly factual issues are in most cases allocated to the jury. See Baltimore & Carolina Line, Inc. v. Redman,295 U. S. 654, 657 (1935). The allocation rests on a firm historical foundation, see, e.g., 1 E. Coke, Institutes 155b (1628) ("ad quaestionem facti non respondent judices; ad quaestionem juris non respondent juratores"), and serves "to preserve the right to a jury's resolution of the ultimate dispute," Markman, supra, at 377. Almost from the inception of our regulatory takings doctrine, we have held that whether a regulation of property goes so far that "there must be an exercise of eminent domain and compensation to sustain the act ... depends upon the particular facts." Pennsylvania Coal Co. v. Mahon,260 U. S. 393, 413 (1922); accord Keystone Bituminous Coal, supra, at 473-474. Consistent with this understanding, we have described determinations of liability in regulatory takings cases as " `essentially ad hoc, factual inquiries,' " Lucas, supra, at 1015 (quoting Penn Central Transp. Co. v. New York City,438 U. S. 104, 124 (1978)), requiring "complex factual assessments of the purposes and economic effects of government actions," Yee,503 U. S., at 523. In accordance with these pronouncements, we hold that the issue whether a landowner has been deprived of all economically viable use of his property is a predominantly factual question. As our implied acknowledgment of the procedure in Williamson, supra, suggests, in actions at law otherwise within the purview of the Seventh Amendment, this question is for the jury. The jury's role in determining whether a land-use decision substantially advances legitimate public interests within the meaning of our regulatory takings doctrine presents a more difficult question. Although our cases make clear that this inquiry involves an essential factual component, see Yee, supra, at 523, it no doubt has a legal aspect as well, and is probably best understood as a mixed question of fact and law. In this case, the narrow question submitted to the jury was whether, when viewed in light of the context and protracted history of the development application process, the city's decision to reject a particular development plan bore a reasonable relationship to its proffered justifications. See Part III, supra. As the Court of Appeals recognized, this question was "essentially fact-bound [in] nature." 95 F. 3d, at 1430 (internal quotation marks omitted) (alteration by Court of Appeals). Under these circumstances, we hold that it was proper to submit this narrow, factbound question to the jury.C We note the limitations of our Seventh Amendment holding. We do not address the jury's role in an ordinary inverse condemnation suit. The action here was brought under §1983, a context in which the jury's role in vindicating constitutional rights has long been recognized by the federal courts. A federal court, moreover, cannot entertain a takings claim under §1983 unless or until the complaining landowner has been denied an adequate postdeprivation remedy. Even the State of California, where this suit arose, now provides a facially adequate procedure for obtaining just compensation for temporary takings such as this one. Our decision is also circumscribed in its conceptual reach. The posture of the case does not present an appropriate occasion to define with precision the elements of a temporary regulatory takings claim; although the city objected to submitting issues of liability to the jury at all, it approved the instructions that were submitted to the jury and therefore has no basis to challenge them. For these reasons, we do not attempt a precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests. The city and its amici suggest that sustaining the judgment here will undermine the uniformity of the law and eviscerate state and local zoning authority by subjecting all land-use decisions to plenary, and potentially inconsistent, jury review. Our decision raises no such specter. Del Monte Dunes did not bring a broad challenge to the constitutionality of the city's general land-use ordinances or policies, and our holding does not extend to a challenge of that sort. In such a context, the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge. Nor was the gravamen of Del Monte Dunes' complaint even that the city's general regulations were unreasonable as applied to Del Monte Dunes' property; we do not address the proper trial allocation of the various questions that might arise in that context. Rather, to the extent Del Monte Dunes' challenge was premised on unreasonable governmental action, the theory argued and tried to the jury was that the city's denial of the final development permit was inconsistent not only with the city's general ordinances and policies but even with the shifting ad hoc restrictions previously imposed by the city. Del Monte Dunes' argument, in short, was not that the city had followed its zoning ordinances and policies but rather that it had not done so. As is often true in §1983 actions, the disputed questions were whether the government had denied a constitutional right in acting outside the bounds of its authority, and, if so, the extent of any resulting damages. These were questions for the jury.V For the reasons stated, the judgment of the Court of Appeals is affirmed.It is so ordered. CITY OF MONTEREY, PETITIONER v. DEL MONTEDUNES AT MONTEREY, LTD., and MONTEREY-DEL MONTE DUNES CORPORATIONon writ of certiorari to the united states court ofappeals for the ninth circuit[May 24, 1999] Justice Scalia, concurring in part and concurring in the judgment. I join all except Part IV-A-2 of Justice Kennedy's opinion. In my view, all §1983 actions must be treated alike insofar as the Seventh Amendment right to jury trial is concerned; that right exists when monetary damages are sought; and the issues submitted to the jury in the present case were properly sent there. I Rev. Stat. §1979, 42 U. S. C. §1983, creates a duty to refrain from interference with the federal rights of others, and provides money damages and injunctive relief for violation of that duty. Since the statute itself confers no right to jury trial, such a right is to be found, if at all, in the application to §1983 of the Seventh Amendment, which guarantees a jury "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars." In determining whether a particular cause of action is a "[s]ui[t] at common law" within the meaning of this provision, we must examine whether it was tried at law in 1791 or is analogous to such a cause, see, e.g., Granfinanciera, S. A. v. Nordberg, 492 U. S. 33, 42 (1989), and whether it seeks relief that is legal or equitable in nature, see, e.g.,Tull v. United States, 481 U. S. 412, 421 (1987). The fundamental difference between my view of this case and Justice Souter's is that I believe §1983 establishes a unique, or at least distinctive, cause of action, in that the legal duty which is the basis for relief is ultimately defined not by the claim-creating statute itself, but by an extrinsic body of law to which the statute refers, namely "federal rights elsewhere conferred." Baker v. McCollan, 443 U. S. 137, 144, n. 3 (1979). In this respect §1983 is, so to speak, a prism through which many different lights may pass. Unlike Justice Souter, I believe that, in analyzing this cause of action for Seventh Amendment purposes, the proper focus is on the prism itself, not on the particular ray that happens to be passing through in the present case. The Seventh Amendment inquiry looks first to the " nature of the statutory action. " Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 348 (1998). The only "statutory action" here is a §1983 suit. The question before us, therefore, is not what common-law action is most analogous to some generic suit seeking compensation for a Fifth Amendment taking, but what common-law action is most analogous to a §1983 claim. The fact that the breach of duty which underlies the particular §1983 claim at issue here — a Fifth Amendment takings violation — may give rise to another cause of action besides a §1983 claim, namely a so-called inverse condemnation suit, which is (according to Part IV-A-2 of Justice Kennedy's opinion) or is not (according to Justice Souter'sopinion) entitled to be tried before a jury, seems to me irrelevant. The central question remains whether a §1983 suit is entitled to a jury. The fortuitous existence of an inverse-condemnation cause of action is surely not essential to the existence of the §1983 claim. Indeed, for almost all §1983 claims arising out of constitutional violations, no alternative private cause of action does exist — which makes it practically useful, in addition to being theoretically sound, to focus on the prism instead of the refracted light. This is exactly the approach we took in Wilson v. Garcia, 471 U. S. 261 (1985)--an opinion whose analysis is so precisely in point that it gives this case a distinct quality of déjà vu. Wilson required us to analogize §1983 actions to common-law suits for a different purpose: not to determine applicability of the jury-trial right, but to identify the relevant statute of limitations. Since no federal limitations period was provided, the Court had to apply 42 U. S. C. §1988(a), which stated that, in the event a federal civil rights statute is "deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the [federal] courts in the trial and disposition of the cause ... ." In applying this provision, the Court identified as one of the steps necessary for its analysis resolution of precisely the question I have been discussing here: "[W]e must ... decide whether all §1983 claims should be characterized in the same way, or whether they should be evaluated differently depending upon the varying factual circumstances and legal theories presented in each individual case." 471 U. S., at 268. The Court concluded (as I do here) that all §1983 claims should be characterized in the same way. It said (as I have) that §1983 was "a uniquely federal remedy," and that it is "the purest coincidence ... when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect." Id., at 271-272 (citations, footnotes, and internal quotation marksomitted). And the Court was affected (as I am here) by the practical difficulties of the other course, which it described as follows:"Almost every §1983 claim can be favorably analogized to more than one of the ancient common-law forms of action, each of which may be governed by a different statute of limitations. ... "A catalog of ... constitutional claims that have been alleged under §1983 would encompass numerous and diverse topics and subtopics: discrimination in public employment on the basis of race or the exercise of First Amendment rights, discharge or demotion without procedural due process, mistreatment of schoolchildren, deliberate indifference to the medical needs of prison inmates, the seizure of chattels without advance notice or sufficient opportunity to be heard — to identify only a few." Id., at 272-273 (footnotes omitted).For these reasons the Court concluded that all §1983 actions should be characterized as "tort action[s] for the recovery of damages for personal injuries." Id., at 276. To be sure, §1988 is not the Seventh Amendment. It is entirely possible to analogize §1983 to the "common law" in one fashion for purposes of that statute, and in another fashion for purposes of the constitutional guarantee. But I cannot imagine why one would want to do that. For both purposes it is a "unique federal remedy" whose character is determined by the federal cause of action, and not by the innumerable constitutional and statutory violations upon which that cause of action is dependent. And for both purposes the search for (often nonexistent) common-law analogues to remedies for those particular violations is a major headache. Surely, the burden should be upon Justice Souter to explain why a different approach is appropriate in the present context. I adhere to the approach of Wilson, reaffirmed and refined in Owens v. Okure, 488 U. S. 235 (1989), that a §1983 action is a §1983 action.1 II To apply this methodology to the present case: There is no doubt that the cause of action created by §1983 is, and was always regarded as, a tort claim. Thomas Cooley's treatise on tort law, which was published roughly contemporaneously with the enactment of §1983, tracked Blackstone's view, see 3 W. Blackstone, Commentaries on the Laws of England 115-119 (1768), that torts are remedies for invasions of certain rights, such as the rights to personal security, personal liberty, and property. T. Cooley, Law of Torts 2-3 (1880). Section 1983 assuredly fits that description. Like other tort causes of action, it is designed to provide compensation for injuries arising from the violation of legal duties, see Carey v. Piphus, 435 U. S. 247, 254 (1978), and thereby, of course, to deter future violations. This Court has confirmed in countless cases that a §1983 cause of action sounds in tort. We have stated repeatedly that §1983 "creates a species of tort liability," Imbler v. Pachtman, 424 U. S. 409, 417 (1976); see also Heck v. Humphrey, 512 U. S. 477, 483 (1994); Memphis Community School Dist. v. Stachura, 477 U. S. 299, 305 (1986); Smith v. Wade, 461 U. S. 30, 34 (1983); Carey, supra, at 253; Hague v. Committee for Industrial Organization, 307 U. S. 496, 507 (1939) (opinion of Roberts, J.) (describing a claim brought under a predecessor of §1983 as seeking relief for "tortious invasions of alleged civil rights by persons acting under color of state authority"). We have commonly described it as creating a "constitutional tort," since violations of constitutional rights have been the most frequently litigated claims. See Crawford-El v. Britton, 523 U. S. 574, 600-601 (1998); Jefferson v. City of Tarrant, 522 U. S. 75, 78-79 (1997); McMillian v. Monroe County, 520 U. S. 781, 784 (1997); Richardson v. McKnight, 521 U. S. 399, 401 (1997); Johnson v. Jones, ; Albright v. Oliver, 510 U. S. 266, 269 (1994); Siegert v. Gilley, 500 U. S. 226, 231 (1991); St. Louis v. Praprotnik, 485 U. S. 112, 121 (1988); Daniels v. Williams, 474 U. S. 327, 329 (1986); Memphis Community School Dist., supra, at 307; Smith,supra, at 35; Monell v. New York City Dept. of Social Servs. 436 U. S. 658, 691 (1978). In Wilson v. Garcia, we explicitly identified §1983 as a personal-injury tort, stating that "[a] violation of [§1983] is an injury to the individual rights of the person," and that "Congress unquestionably would have considered the remedies established in the Civil Rights Act [of 1871] to be more analogous to tort claims for personal injury than, for example, to claims for damages to property or breach of contract." 471 U. S., at 277. As described earlier, in Wilson, supra, and Okure, supra, we used §1983's identity as a personal-injury tort to determine the relevant statute of limitations under 42 U. S. C. §1988(a). We have also used §1983's character as a tort cause of action to determine the scope of immunity, Kalina v. Fletcher, 522 U. S. 118, 124-125 (1997), the recoverable damages, Heck, supra, at 483; Memphis Community School Dist., supra, at 305-306, and the scope of liability, Monroe v. Pape, 365 U. S. 167, 187 (1961). In Owen v. City of Independence, 445 U. S. 622, 657 (1980), we even asserted that the attributes of §1983 could change to keep up with modern developments in the law of torts: "Doctrines of tort law have changed significantly over the past century, and our notions of governmental responsibility should properly reflect that evolution. ... [T]he principle of equitable loss-spreading has joined fault as a factor in distributing the costs of official misconduct." The Seventh Amendment's right to jury trial attaches to a statutory cause of action that, although unknown at common law, is analogous to common-law causes that were tried before juries. See, e.g.,Feltner v. Columbia Pictures Television, Inc., 523 U. S. 340, 347-348 (1998). The initial Seventh Amendment question before us, therefore, is whether a tort action seeking money damages was a "suit at common law" for which a jury trial was provided. The answer is obviously yes. Common-law tort actions were brought under the writs of trespass and trespass on the case. See generally S. F. C. Milsom, Historical Foundations of the Common Law 283-313 (2d ed. 1981). Trespass remedied direct, forcible tortious injuries, while the later developed trespass on the case remedied indirect or consequential harms. See, e.g., Dix, Origins of the Action of Trespass on the Case, 46 Yale L. J. 1142, 1163 (1937); Krauss, Tort Law and Private Ordering, 35 St. Louis U. L. J. 623, 637, and n. 66 (1991). Claims brought pursuant to these writs and seeking money damages were triable to juries at common law. See, e.g., T. Plucknett, A Concise History of the Common Law 125, 348 (4th ed. 1948); J. Baker, An Introduction to English Legal History 59 (2d ed. 1979). It is clear from our cases that a tort action for money damages is entitled to jury trial under the Seventh Amendment. See Curtis v. Loether, 415 U. S. 189, 195 (1974) (according jury trial because "[a] damages action under [Title VIII of the Civil Rights Act of 1968] sounds basically in tort — the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach"); Pernell v. Southall Realty, 416 U. S. 363, 370 (1974) ("This Court has long assumed that ... actionsfor damages to a person or property ... are actions atlaw triable to a jury"); Ross v. Bernhard, 396 U. S. 531, 533 (1970) ("The Seventh Amendment . . . entitle[s] the parties to a jury trial in actions for damages to a person or property ... "). A number of lower courts have held that a §1983 damages action — without reference to what might have been the most analogous common-law remedy for violation of the particular federal right at issue — must be tried to a jury. See, e.g.,Caban-Wheeler v. Elsea, 71 F. 3d 837, 844 (CA11 1996); Perez-Serrano v. DeLeon-Velez, 868 F. 2d 30, 32-33 (CA1 1989); Laskaris v. Thornburgh, 733 F. 2d 260, 264 (CA3 1984); Segarra v. McDade, 706 F. 2d 1301, 1304 (CA4 1983); Dolence v. Flynn, 628 F. 2d 1280, 1282 (CA10 1980); Amburgey v. Cassady, 507 F. 2d 728, 730 (CA6 1974); Brisk v. Miami Beach, 726 F. Supp. 1305, 1311-1312 (SD Fla. 1989); RuthAnne M. v. Alvin Independent School Dist., 532 F. Supp. 460, 475 (SD Tex. 1982); Mason v. Melendez, 525 F. Supp. 270, 282 (WD Wis. 1981); Cook v. Cox, 357 F. Supp. 120, 124-125, and n. 4 (ED Va. 1973). In sum, it seems to me entirely clear that a §1983 cause of action for damages is a tort action for which jury trial would have been provided at common law. The right of jury trial is not eliminated, of course, by virtue of the fact that, under our modern unified system, the equitable relief of an injunction is also sought. See, e.g.,Dairy Queen, Inc. v. Wood, 369 U. S. 469, 479 (1962); Scott v. Neely, 140 U. S. 106, 109-110 (1891). Nor — to revert to the point made in Part I of this discussion — is the tort nature of the cause of action, and its entitlement to jury trial, altered by the fact that another cause of action was available (an inverse condemnation suit) to obtain the same relief. Even if that were an equitable cause of action — or, as Justice Souter asserts, a peculiar legal cause of action to which the right to jury trial did not attach — the nature of the §1983 suit would no more be transformed by it than, for example, a common-law fraud action would be deprived of the right to jury trial by the fact that the defendant was a trustee who could, instead, have been sued for an equitable accounting. III To say that respondents had the right to a jury trial on their §1983 claim is not to say that they were entitled to have the jury decide every issue. The precise scope of the jury's function is the second Seventh Amendment issue before us here — and there again, as we stated in Markman v. Westview Instruments, Inc., 517 U. S. 370, 377 (1996), history is our guide. I agree with the Court's methodology, see ante, at 27, 29, which, in the absence of a precise historical analogue, recognizes the historical preference for juries to make primarily factual determinations and for judges to resolve legal questions. See Baltimore & Carolina Line, Inc. v. Redman, 295 U. S. 654, 657 (1935). That fact-law dichotomy is routinely applied by the lower courts in deciding §1983 cases. For instance, in cases alleging retaliatory discharge of a public employee in violation of the First Amendment, judges determine whether the speech that motivated the termination was constitutionally protected speech, while juries find whether the discharge was caused by that speech. See, e.g.,Horstkoetter v. Department of Public Safety, 159 F. 3d 1265, 1271 (CA10 1998). And in cases asserting municipal liability for harm caused by unconstitutional policies, judges determine whether the alleged policies were unconstitutional, while juries find whether the policies in fact existed and whether they harmed the plaintiff. See, e.g.,Myers v. County of Orange, 157 F. 3d 66, 74-76 (CA2 1998), cert. denied, 525 U. S. ___ (1999). In the present case, the question of liability for a Takings Clause violation was given to the jury to determine by answering two questions: (1) whether respondents were deprived of "all economically viable use" of their property, and (2) whether petitioner's 1986 rejection of respondents' building plans "substantially advance[d] [a] legitimate public interes[t]." I concur in the Court's assessment that the "economically viable use" issue presents primarily a question of fact appropriate for consideration by a jury. Ante, at 29-30. The second question — whether the taking "substantially advance[s] [a] legitimate public interes[t]"2 --seems to me to break down (insofar as is relevant to the instructions here) into two subquestions: (1) Whether the government's asserted basis for its challenged action represents a legitimate state interest. That was a question of law for the court. (2) Whether that legitimate state interest is substantially furthered by the challenged government action. I agree with the Court that at least in the highly particularized context of the present case, involving the denial of a single application for stated reasons, that was a question of fact for the jury. As the matter was put to the jury in the present case, the first subquestion was properly removed from the jury's cognizance: the court instructed that "legitimate public interest[s] can include protecting the environment, preserving open space agriculture, protecting the health and safety of its citizens, and regulating the quality of the community by looking at development." App. 304. These included the only public interests asserted in the case. The second subquestion, on the other hand, was properly left to the jury: "[O]ne of your jobs as jurors is to decide if the city's decision here substantially advanced any such legitimate public purpose." Ibid.; see ante, at 30.* * * I conclude that the Seventh Amendment provides respondents with a right to a jury trial on their §1983 claim, and that the trial court properly submitted the particular issues raised by that §1983 claim to the jury. For these reasons, I concur in the judgment and join all but Part IV-A-2 of Justice Kennedy's opinion. CITY OF MONTEREY, PETITIONER v. DEL MONTEDUNES AT MONTEREY, LTD., and MONTEREY-DEL MONTE DUNES CORPORATIONon writ of certiorari to the united states court ofappeals for the ninth circuit[May 24, 1999] Justice Souter, with whom Justice O'Connor,Justice Ginsburg, and Justice Breyer join, concurring in part and dissenting in part. A federal court commits error by submitting an issue to a jury over objection, unless the party seeking the jury determination has a right to a jury trial on the issue. Fed. Rule Civ. Proc. 39(a)(2). In this action under Rev. Stat. §1979, 42 U. S. C. §1983, the city unsuccessfully objected to submitting respondents' regulatory taking (or inverse condemnation) claim to a jury. Respondents had no right to a jury trial either by statute or under the Constitution; the District Court thus erred in submitting their claim to a jury. In holding to the contrary, that such a right does exist under the Seventh Amendment, the Court misconceives a taking claim under §1983 and draws a false analogy between such a claim and a tort action. I respectfully dissent from the erroneous Parts III and IV of the Court's opinion.I I see eye to eye with the Court on some of the preliminary issues. I agree in rejecting extension of "rough proportionality" as a standard for reviewing land-use regulations generally and so join Parts I and II of the majority opinion. I also join the Court in thinking the statutory language "an action at law" insufficient to provide a jury right under 42 U. S. C. §1983, ante, at 16, with the consequence that Markman v. Westview Instruments, Inc.,517 U. S. 370 (1996), must provide the appropriate questions in passing on the issue of a constitutional guarantee of jury trial: " `whether we are dealing with a cause of action that either was tried at law at the time of the founding or is at least analogous to one that was' "; and, if so, "whether the particular trial decision must fall to the jury in order to preserve the substance of the common-law right as it existed in 1791.' " Ante, at 16-17 (quoting Markman, supra, at 376). The Court soundly concedes that at the adoption of the Seventh Amendment there was no action like the modern inverse condemnation suit for obtaining just compensation when the government took property without invoking formal condemnation procedures. Like the Court, I am accordingly remitted to a search for any analogy that may exist and a consideration of any implication going to the substance of the jury right that the results of that enquiry may raise. But this common launching ground is where our agreement ends.II The city's proposed analogy of inverse condemnation proceedings to direct ones is intuitively sensible, given their common Fifth Amendment constitutional source and link to the sovereign's power of eminent domain. Accord, e.g., New Port Largo, Inc. v. Monroe County, 95 F. 3d 1084, 1092 (CA11 1996) ("We have discovered no indication that the rule in regulatory takings cases differs from the general eminent domain framework"); Northglenn v. Grynberg, 846 P. 2d 175, 178 (Colo. 1993) ("Because an inverse condemnation action is based on the `takings' clause of our constitution, it is to be tried as if it were an eminent domain proceeding"). See Grant, A Revolutionary View of the Seventh Amendment and the Just Compensation Clause, 91 Nw. U. L. Rev. 144, 191-205 (1996). The intuition is borne out by closer analysis of the respective proceedings. The ultimate issue is identical in both direct and inverse condemnation actions: a determination of "the fair market value of the property [taken] on the date it is appropriated," as the measure of compensation required by the Fifth Amendment. Kirby Forest Industries, Inc. v. United States,467 U. S. 1, 10 (1984). It follows, as Justice Brandeis said in Hurley v. Kincaid, 285 U. S. 95 (1932), that "[t]he compensation which [a property owner] may obtain in [an inverse condemnation] proceeding will be the same as that which he might have been awarded had the [government] instituted ... condemnation proceedings," id., at 104. This, indeed, has been our settled understanding, in cases before Hurley and after Kirby Forest Industries, which have emphasized the common underlying nature of direct and inverse condemnation cases; the commencement of inverse condemnation actions by property owners, and direct condemnation proceedings by the government, does not go to the substance of either. As we said in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,482 U. S. 304 (1987):" `The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners d[oes] not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment.' " Id., at 315 (quoting Jacobs v. United States,290 U. S. 13, 16 (1933)).Accord, Boom Co. v. Patterson,98 U. S. 403, 407 (1879) ("The point in issue [in the inverse condemnation proceeding] was the compensation to be made to the owner of the land; in other words, the value of the property taken... . The case would have been in no essential particular different had the State authorized the company by statute to appropriate the particular property in question, and the owners to bring suit against the company in the courts of law for its value"). It is presumably for this reason that this Court has described inverse condemnation actions as it might speak of eminent domain proceedings brought by property owners instead of the government. See Agins v. City of Tiburon,447 U. S. 255, 258, n. 2 (1980) ("Inverse condemnation is `a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted' ") (quoting United States v. Clarke,445 U. S. 253, 257 (1980)). See also Armstrong v. United States,364 U. S. 40, 49 (1960); Grant, supra, at 192-193 ("The difference between condemnation and inverse condemnation inheres precisely in the `character' of the former as United States v. Landowner and the latter as Landowner v. United States"). Thus, the analogy between direct and inverse condemnation is apparent whether we focus on the underlying Fifth Amendment right or the common remedy of just compensation. The strength of the analogy is fatal to respondents' claim to a jury trial as a matter of right. Reaffirming what was already a well-established principle, the Court explained over a century ago that "the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury," Bauman v. Ross,167 U. S. 548, 593 (1897) (citing, inter alia, Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch 233 (1810); United States v. Jones,109 U. S. 513, 519 (1883); and Shoemaker v. United States,147 U. S. 282, 300, 301 (1893)),1 and we have since then thought it "long ... settled that there is no constitutional right to a jury in eminent domain proceedings." United States v. Reynolds,397 U. S. 14, 18 (1970).2 See 12 C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure §3051, p. 224 (1997) ("It is absolutely settled that there is no constitutional right to a trial by jury in compensation cases"). The reason that direct condemnation proceedings carry no jury right is not that they fail to qualify as "Suits at common-law" within the meaning of the Seventh Amendment's guarantee, for we may assume that they are indeed common law proceedings,3 see Kohl v. United States, 91 U. S. 367, 376 (1876) ("The right of eminent domain always was a right at common law"); Louisiana Power & Light Co. v. City of Thibodaux,360 U. S. 25, 28 (1959) ("[A]n eminent domain proceeding is deemed for certain purposes of legal classification a `suit at common law' "). The reason there is no right to jury trial, rather, is that the Seventh Amendment "preserve[s]" the common law right where it existed at the time of the framing, but does not create a right where none existed then. See U. S. Const., Amdt. 7 ("In Suits at common law ... the right of trial by jury shall be preserved"). See also 5 J. Moore, J. Lucas, & J. Wicker, Moore's Federal Practice ¶ ;38.32[1], p. 38-268 (2d ed. 1996) ("[T]he Seventh Amendment does not guarantee a jury trial in all common law actions in the federal courts; [instead] it preserves the right of jury trial as at common law"). There is no jury right, then, because condemnation proceedings carried "no uniform and established right to a common law jury trial in England or the colonies at the time ... the Seventh Amendment was adopted." Ibid. See, e.g., Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n,430 U. S. 442, 458 (1977) ("Condemnation was a suit at common law but constitutionally could be tried without a jury"). The statement in Reynolds indeed expressly rested on these considerations, as shown in the Court's quotation of Professor Moore's statement that "[t]he practice in England and in the colonies prior to the adoption in 1791 of the Seventh Amendment, the position taken by Congress contemporaneously with, and subsequent to, the adoption of the Amendment, and the position taken by the Supreme Court and nearly all of the lower federal courts lead to the conclusion that there is no constitutional right to jury trial in the federal courts in an action for the condemnation of property under the power of eminent domain." Reynolds, supra, at 18 (quoting 5 J. Moore, Federal Practice ¶ ;38.32[1], p. 239 (2d ed. 1969) (internal quotation marks omitted)). The Court in Reynolds was on solid footing. In England, while the general practice of Parliament was to provide for the payment of compensation, parliamentary supremacy enabled it to take private property for public use without compensation. See, e.g., Randolph, The Eminent Domain, 3 L. Q. Rev. 314, 323 (1887) ("That there is no eminent domain sub nomine in England is because the power is included, and the right to compensation lost, in the absolutism of Parliament. The only technical term approximating eminent domain is `compulsory powers' as used in statutes granting to companies and associations the right to take private property for their use"). See also McNulty, The Power of "Compulsory Purchase" Under the Law of England, 21 Yale L. J. 639, 644-646 (1912). Thus, when Parliament made provision for compensation, it was free to prescribe whatever procedure it saw fit, and while the agency of a common-law jury was sometimes chosen, very frequently other methods were adopted. See Blair, Federal Condemnation Proceedings and the Seventh Amendment, 41 Harv. L. Rev. 29, 32-36 (1927); id., at 36 ("[A]n ample basis exists in the parliamentary precedents for the conclusion that the common law sanctioned such diverse methods of assessment that no one method can be said to have been made imperative by the Seventh Amendment"). See also 1A J. Sackman, Nichols on Eminent Domain §4.105[1], p. 4-115, and, §4.107, pp. 4-136 to 4-137 (rev. 3d ed. 1998) ("It had become the practice in almost all of the original thirteen states at the time when their constitutions were adopted, to refer the question of damages from the construction of [high]ways ... to a commission of viewers or appraisers, generally three or five in number"); id., at 4-137 ("[I]t has been repeatedly held that when land is taken by authority of the United States, the damages may be ascertained by any impartial tribunal"). In sum, at the time of the framing the notion of regulatory taking or inverse condemnation was yet to be derived, the closest analogue to the then-unborn claim was that of direct condemnation, and the right to compensation for such direct takings carried with it no right to a jury trial, just as the jury right is foreign to it in the modern era. On accepted Seventh Amendment analysis, then, there is no reason to find a jury right either by direct analogy or for the sake of preserving the substance of any jury practice known to the law at the crucial time. Indeed, the analogy with direct condemnation actions is so strong that there is every reason to conclude that inverse condemnation should implicate no jury right.III The plurality avoids this obvious conclusion in two alternative ways. One way is to disparage the comparison of inverse to direct taking, on the grounds that litigation of the former involves proof of liability that the latter does not and is generally more onerous to the landowner. The disparagement is joined with adoption of a different analogy, between inverse condemnation proceedings and actions for tortious interference with property interests, the latter of which do implicate a right to jury trial. The plurality's stated grounds for avoiding the direct condemnation analogy, however, simply break down, and so does the purported comparison to the tort actions. The other way the plurality avoids our conclusion is by endorsing the course followed by Justice Scalia in his separate opinion, by selecting an analogy not to tort actions as such, but to tort-like §1983 actions. This alternative, however, is ultimately found wanting, for it prefers a statutory analogy to a constitutional one.A1 The plurality's argument that no jury is required in a direct condemnation proceeding because the government's liability is conceded, leaving only the issue of damages to be assessed, rests on a premise that is only partially true. The part that is true, of course, is that the overwhelming number of direct condemnation cases join issue solely on the amount of damages, that is, on the just compensation due the landowner. But that is not true always. Now and then a landowner will fight back by denying the government's right to condemn, claiming that the object of the taking was not a public purpose or was otherwise unauthorized by statute. See, e.g., Hawaii Housing Authority v. Midkiff,467 U. S. 229, 240 (1984) ("There is ... a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even ... [if] it is an `extremely narrow' one" (citation omitted)); Shoemaker,147 U. S., at 298. See also 2A Sackman, supra, at7-81 to 7-82, and nn. 89-90 (listing state cases where condemnation clauses and the Due Process Clause of the Fourteenth Amendment have been relied upon by property owners to contest attempts to acquire their property for private purposes); 2 J. Lewis, Law of Eminent Domain §417, p. 923, and n. 51 (2d ed. 1900). What is more, when such a direct condemnation does have more than compensation at stake, the defense of no public purpose or authority closely resembles, if indeed it does not duplicate, one of the grounds of liability for inverse condemnation noted in Agins, 447 U. S., at 260-261, and raised in this case: the failure of the regulation to contribute substantially to the realization of a legitimate governmental purpose.4 Indeed, the distinction between direct and inverse condemnation becomes murkier still when one considers that, even though most inverse condemnation plaintiffs accept the lawfulness of the taking and just want money, see infra, at 18, some such plaintiffs ask for an injunction against the government's action, in which event they seek the same ultimate relief as the direct condemnee who defends against the taking as unauthorized. If the direct condemnee has no right to a jury, see 2A Sackman, supra, §7.03[11][a], at 7-90 ("The question of whether a legislative determination of a public use is really public has been declared by the courts ultimately to be a judicial one"), the inverse condemnee should fare no differently. This recognition may underlie the fact that the plurality's absence-of-liability-issue reasoning for distinguishing direct and inverse condemnation fails to resonate through the cases holding that direct actions carry no jury right or commenting on the absence of juries in such cases. While the plurality cites an opinion of Justice Baldwin, sitting on Circuit, for its position, ante, at 21-22 (citing Bonaparte v. Camden & Amboy R. Co., 3 F. Cas. 821, 829 (No. 1,617) (CC NJ 1830)), this citation leaves the reader with a rather skewed perspective on the diversity of rationales underlying early state cases in which the right of a direct condemnee to a jury trial was considered and denied. Several courts rested on the fact that proceedings to secure compensation were in the nature of suits against the sovereign, and thus the legislature could qualify and condition the right to bring such suits, at least to the extent of providing that they be conducted without a jury. See, e.g., Ligat v. Commonwealth, 19 Pa. 456, 460 (1852) ("A sovereign state is not liable to an action at law, against her consent; and the right of trial by jury has, therefore, no existence in such a case"); Pennsylvania R. Co. v. First German Lutheran Congregation of Pittsburgh, 53 Pa. 445, 449 (1866) ("In taking private property for its road [the railroad corporation] exercises a part of the sovereign power of the state ... [and] the right of trial by jury has never been held to belong to the citizen himself in proceedings by the state under her powers of eminent domain"). See also McElrath v. United States, 102 U. S. 426, 440 (1880). Just as significantly, the plurality's new rationale is absent from any of our precedents, including those underlying the Reynolds decision.5 Finally, the absence of the plurality's rationale from our prior discussions of the matter most probably reflects the fact that the want of a liability issue in most condemnation cases says nothing to explain why no jury ought to be provided on the question of damages that always is before the courts. The dollars-and-cents issue is about as "factual" as one can be (to invoke a criterion of jury suitability emphasized by the Court in another connection, ante, at 29-30), and no dispute about liability provokes more contention than the price for allowing the government to put a landowner out of house and home. If an emphasis on factual issues vigorously contested were a sufficient criterion for identifying something essential to the preservation of the Seventh Amendment jury right, there ought to be a jury right in direct condemnation cases as well as the inverse ones favored by the plurality. The plurality's second reason for doubting the comparability of direct and inverse condemnation is that the landowner has a heavier burden to shoulder in the latter case, beginning with a need to initiate legal action, see United States v. Clarke,445 U. S., at 257. Once again, however, it is apparent that the two varieties of condemnation are not always so distinguishable. The landowner who defends in a direct condemnation action by denying the government's right to take is in no significantly different position from the inverse condemnee who claims the government must pay or be enjoined because its regulation fails to contribute substantially to its allegedly public object. See, e.g., 2A Sackman, Nichols on Eminent Domain §7.03[12], at7-105 to 7-106 (citing cases where "the challenger has the burden of proof to show that the taking is not for a public purpose"). And once again one may ask why, even if the inverse condemnee's burden always were the heavier, that should make any difference. Some plaintiffs' cases are easy and some are difficult, but the difficult ones are no different in front of a jury (except on the assumption that juries are more apt to give David the advantage against Goliath, which I do not believe is the plurality's point). Neither the Fifth nor the Seventh Amendment has ever been thought to shift and spring with ease of proof. Cf. United States v. 101.88 Acres of Land, More or Less, Situated in St. Mary's Parish, La., 616 F. 2d 762, 772 (CA5 1980) ("The 5th Amendment, while it guarantees that compensation be just, does not guarantee that it be meted out in a way more convenient to the landowner than to the sovereign").2 Just as the plurality's efforts to separate direct from inverse condemnation actions thus break down, so does its proposal to analogize inverse condemnation to property damage torts. Whereas the plurality posits an early practice of litigating inverse condemnation as a common-law tort, there was in fact a variety of treatments, some of them consistent with the plurality's argument, some of them not. None of those treatments turned on the plurality's analysis that a State's withholding of some recovery process is essential to the cause of action. In the end, the plurality's citations simply do not point to any early practice both consistently followed and consistent with the concepts underlying today's inverse condemnation law.a The plurality introduces its claimed analogue of tort actions for property damage by emphasizing what it sees as a real difference between the action of the government in direct condemnations, and those inverse condemnations, at least, that qualify for litigation under §1983. Whereas in eminent domain proceedings the government admits its liability for the value of the taking, in the inverse condemnation cases litigated under §1983, it refuses to do so inasmuch as it denies the landowner any state process (or effective process) for litigating his claim. See Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,473 U. S. 172, 194-195 (1985). Thus the plurality explains that "[a]lthough the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government's action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English, 482 U. S., at 315 (citing Jacobs, 290 U. S., at 16). When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government's actions are not only unconstitutional but unlawful and tortious as well." Ante, at 26.According to the plurality, it is the taking of property without providing compensation or a mechanism to obtain it that is tortious and subject to litigation under §1983. See ante, at 23, 26. By this reasoning, the plurality seeks to distinguish such a §1983 action from a direct condemnation action and possibly from "an ordinary inverse condemnation suit," as well, ante, at 30, by which the plurality presumably means a suit under a state law providing a mechanism for redress of regulatory taking claims. The plurality claims to have authority for this view in some early state and federal cases seeing regulatory interference with land use as akin to nuisance, trespass, or trespass on the case, ante, at 24-25, and I agree that two of the plurality's cited cases,6 decided under state law, are authority for the tort treatment the plurality claims to be the appropriate analogy. See Gardner v. Village of Newburgh, 2 Johns. 162 (N. Y. 1816) (Kent, Ch.); Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). One other is arguably such authority; Richards v. Washington Terminal Co.,233 U. S. 546 (1914), is somewhat ambiguous, holding that the law of nuisance would provide compensation for interference with enjoyment of land when the State chose not to take the interest by direct condemnation; the measure of damages (not explained) may well have been what the Fifth Amendment would provide for a temporary partial taking. Beyond these cases, however, any prospect of a uniform tort treatment disappears. One of the plurality's cited cases, Bradshaw v. Rodgers, 20 Johns. 103 (N. Y. 1822), was reversed by Rogers v. Bradshaw, 20 Johns. 735 (N. Y. 1823). As the concept of public liability was explained in the latter opinion, it turned not on an issue of garden variety tort law, but on whether there was a total absence or not of legal authority for a defending public officer's action with respect to the land. See id., at 743 ("I should doubt exceedingly, whether the general principle, that private property is not to be taken for public uses without just compensation, is to be carried so far as to make a public officer, who enters upon private property by virtue of legislative authority, specially given for a public purpose, a trespasser, if he enters before the property has been paid for. I do not know, nor do I find, that the precedents will justify any court of justice in carrying the general principle to such an extent"). See also Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 64-65 (1999) (demonstrating that pre-Civil War owner-initiated just compensation plaintiffs could recover retrospective damages under common law action of trespass or trespass on the case only after defendant was "stripped of his [legislative] justification"). Cf. Leader v. Moxon, 2 Black. W. 924, 927, 96 Eng. Rep. 546, 547 (C. P. 1773) (commissioners acted outside their statutory authority and were thus liable in tort); Boulton v. Crowther, 2 Barn. & Cress. 701, 707, 107 Eng. Rep. 544, 547 (K. B. 1824). Under these cases, there would be no recovery unless the public officer interfering with the property right was acting wholly without authority. But as absence of legal authorization becomes crucial to recovery, the analogy to tort liability fades. What is even more damaging to the attempted tort analogy, whether it rests on simple tort cases like Gardner or legal authorization cases like Bradshaw, is that this very assumption that liability flows from wrongful or unauthorized conduct is at odds with the modern view of acts effecting inverse condemnation as being entirely lawful.7 See First English Evangelical Lutheran, 482 U. S., at 314-315 (citing Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City,473 U. S. 172, 194 (1985)); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc.,452 U. S. 264, 297, n. 40 (1981); Hurley v. Kincaid,285 U. S., at 104; Monongahela Nav. Co. v. United States,148 U. S. 312, 336 (1893); United States v. Jones,109 U. S., at 518). Unlike damages to redress a wrong as understood in Gardner or Bradshaw (or even in a modern tort action), a damages award in an inverse condemnation action orders payment of the "just compensation" required by the Constitution for payment of an obligation lawfully incurred. To the plurality's collection of tort and authorization cases, one must add those that are so far from reflecting any early understanding of inverse condemnation as conventionally tortious that they treat inverse condemnation as grounding an action in quasi contract, see, e.g., Jacobs v. United States,290 U. S., at 16. Although the quasi-contractual action seems to be the closest cousin to the plurality's conception of §1983 as applied here, the resemblance is limited by that strain of quasi contract8 theory holding that the defendant must pay for what he has received to avoid unjust enrichment, see E. Farnsworth, Farnsworth on Contracts §2.20, p. 101 (3d ed. 1994), whereas the theory of just compensation for a taking is that the owner must be paid for what he has lost, United States v. Miller,317 U. S. 369, 373-374 (1943). After a canvass of these materials, the only conclusion that seems reasonable to me is that prior to the emergence of the modern inverse condemnation action a spectrum of legal theories was employed to respond to the problem of inverse taking. No one of these experiments can be accepted as a definitive analogue of the contemporary action, and each of them is inconsistent in some way with the contemporary view that inverse condemnation enforces payment for the owner's value in property lawfully taken.b If the chosen tort analogy were not already too weak to sustain the plurality's position, it would be rendered so by the plurality's inability to identify any tort recovery under the old cases for the government's sin of omission in failing to provide a process of compensation (which the plurality finds at the heart of the §1983 claim), as distinct from the acts of interfering with use or enjoyment of land. The plurality simply fails to find any analogue on this element, and its failure is in fact matched by the failure of its §1983 theory to fit the reality of §1983 litigation for inverse takings. When an inverse condemnation claim is brought under §1983, the "provision" of law that is thereby enforced, Golden State Transit Corp. v. Los Angeles,493 U. S. 103, 106 (1989), is the Fifth Amendment Just Compensation Clause and no other.9 There is no separate cause of action for withholding process, and respondents in the instant case do not claim otherwise; they simply seek just compensation for their land, subject to the usual rules governing §1983 liability and damages awards.10 c Finally, it must be said that even if the tort analogue were not a failure, it would prove too much. For if the comparison to inverse condemnation were sound, it would be equally sound as to direct condemnation and so require recognition of the very jury right that we have previously denied. This perception was apparent to the Court of Appeals in this case, when it wrote (erroneously) that "both eminent domain and inverse condemnation actions resemble common-law actions for trover to recover damages for conversion of personal property, and detinue and replevin." 95 F. 3d 1422, 1427 (CA9 1996). The Court of Appeals, indeed, cited Beatty v. United States, 203 F. 620 (CA4 1913), as does the plurality, ante, at 26, in which the Fourth Circuit held that the landowner in a direct condemnation proceeding had a Seventh Amendment right to a jury determination of just compensation: "The taking of property by condemnation under the power of eminent domain is compulsory. The party is deprived of his property against his will... . The analogy to a suit at common law for trespass is close and complete, and it is for that reason presumably the Supreme Court of the United States, acting on the definition of a suit at common law previously indicated by it, has decided that a proceeding by the United States to condemn lands for public purposes is a suit at common law. If so it be, then it would follow that the defendant, if he claims it, is entitled at some stage in the proceeding to have his damages assessed by a jury." 203 F., at 626.The plurality's analogy, if accepted, simply cannot be confined to inverse condemnation actions alone, and if it is not so confined it runs squarely against the settled law in the field of direct condemnation.B In addition to the plurality's direct tort analogy, it pursues a different analytical approach in adopting Justice Scalia's analogy to §1983 actions seeking legal relief, see ante, at 17. Justice Scalia begins with a more sweeping claim: "The central question remains whether a §1983 suit is entitled to a jury." Ante, at 2 (opinion concurring in part and concurring in judgment). The analogy to the broad class of §1983 actions is put forward as serving the undoubted virtues of simplicity and uniformity in treating various actions that may be brought under a single remedial statute. It is only when "apply[ing] this methodology to the present case," ante, at 5, that Justice Scalia is careful not to claim too much: he no longer argues for drawing an analogy between §1983 inverse condemnation actions and all §1983 actions, but only those §1983 actions brought to recover money damages, see ante, at 7. This subclass of §1983 actions, he quite correctly notes, has been treated as tortlike in character and thus as much entitled to jury trial as tort actions have been at common law. For two independent reasons, however, I think the analogy with §1983 actions, either as a class or as a subclass of damages actions, is inadequate.1 First, the analogy to all §1983 actions does not serve any unified field theory of jury rights under §1983. While the statute is indeed a prism through which rights originating elsewhere may pass on their way to a federal jury trial, trial by jury is not a uniform feature of §1983 actions. The statute provides not only for actions at law with damages remedies where appropriate, but for "suit[s] in equity, or other proper proceeding[s] for redress." 42 U. S. C. §1983. Accordingly, rights passing through the §1983 prism may in proper cases be vindicated by injuction, see, e.g., Mitchum v. Foster, 407 U. S. 225, 242-243 (1972) (§1983 falls within "expressly authorized" exception of Anti-Injunction Act and thus authorizes injunctions staying state-court proceedings), orders of restitution, see, e.g., Samuel v. University of Pittsburgh, 538 F. 2d 991, 994-995 (CA3 1976) (restitution of university fees collected pursuant to rule held to violate Equal Protection Clause), and by declaratory judgments, see, e.g., Steffel v. Thompson, 415 U. S. 452, 454, 475 (1974) (declaratory relief under §1983 available in suit claiming state criminal statute constitutionally invalid), none of which implicate, or always implicate, a right to jury trial. Comparing inverse condemnation actions to the class of §1983 actions that are treated like torts does not, therefore, preserve a uniformity in jury practice under §1983 that would otherwise be lost. Justice Scalia's metaphor is, indeed, an apt one: §1983 is a prism, not a procrustean bed. Nor, as I have already mentioned, see supra, at 17-19, is there a sound basis for treating inverse condemnation as providing damages for a tort. A State's untoward refusal to provide an adequate remedy to obtain compensation, the sine qua non of an inverse condemnation remedy under §1983, is not itself the independent subject of an award of damages (and respondents do not claim otherwise); the remedy is not damages for tortious behavior, but just compensation for the value of the property taken.2 Even if an argument for §1983 simplicity and uniformity were sustainable, however, it would necessarily be weaker than the analogy with direct condemnation actions. That analogy rests on two elements that are present in each of the two varieties of condemnation actions: a Fifth Amendment constitutional right and a remedy specifically mandated by that same amendment. Because constitutional values are superior to statutory values, uniformity as between different applications of a given constitutional guarantee is more important than uniformity as between different applications of a given statute. If one accepts that proposition as I do, a close analogy between direct and inverse condemnation proceedings is necessarily stronger than even a comparably close resemblance between two statutory actions. IV Were the results of the analysis to this point uncertain, one final anomaly of the Court's position would point up its error. The inconsistency of recognizing a jury trial right in inverse condemnation, notwithstanding its absence in condemnation actions, appears the more pronounced on recalling that under Agins one theory of recovery in inverse condemnation cases is that the taking makes no substantial contribution to a legitimate governmental purpose.11 This issue includes not only a legal component that may be difficult to resolve, but one so closely related to similar issues in substantive due process property claims, that this Court cited a substantive due process case when recognizing the theory under the rubric of inverse condemnation. See Agins, 447 U. S., at 260 (citing Nectow v. Cambridge,277 U. S. 183, 188 (1928)).12 Substantive due process claims are, of course, routinely reserved without question for the court. See, e.g., County of Sacramento v. Lewis,523 U. S. 833, 853-855 (1998); Washington v. Glucksberg,521 U. S. 702, 722-723 (1997); FM Properties Operating Co. v. Austin, 93 F. 3d 167, 172, n. 6 (CA5 1996) (rational relationship to legitimate government interest for purposes of substantive due process a question of law for the court); Sameric Corp. v. Philadelphia, 142 F. 3d 582, 590-591 (CA3 1998) (same as to city historical commission action).13 Thus, it would be far removed from usual practice to charge a jury with the duty to assess the constitutional legitimacy of the government's objective or the constitutional adequacy of its relationship to the government's chosen means. The usual practice makes perfect sense. While juries are not customarily called upon to assume the subtleties of deferential review, courts apply this sort of limited scrutiny in all sorts of contexts and are routinely accorded institutional competence to do it. See, e.g., Pearson v. Grand Blanc, 961 F. 2d 1211, 1222 (CA6 1992) (deferential substantive due process review a matter of law for the court). Scrutinizing the legal basis for governmental action is "one of those things that judges often do and are likely to do better than juries unburdened by training in exegesis." Markman, 517 U. S., at 388. It therefore should bring no surprise to find that in the taking cases a question whether regulatory action substantially advances a legitimate public aim has more often than not been treated by the federal courts as a legal issue. See, e.g., New Port Largo, Inc. v. Monroe County, 95 F. 3d 1084, 1092 (CA11 1996) (whether regulatory taking occurred is an issue for the court); Mid Gulf, Inc. v. Bishop, 792 F. Supp. 1205, 1213-1214, 1215 (Kan. 1992) (whether city's regulations unreasonable and a taking a question of law for the court); Gissell v. Kenmare Township, 512 N. W. 2d 470, 474 (N. D. 1994) (necessity for proposed taking a question for the court); Yegen v. Bismarck, 291 N. W. 2d 422, 424 (N. D. 1980) (taking vel non of private property for public use a question of law). But see Gray v. South Carolina Dept. of Highways, 427 S. E. 2d 899 (S. C. App. 1992) (whether no taking because closing of intersection was needed to prevent serious public harm is jury issue). These practices point up the great gulf between the practical realities of taking litigation, and the Court's reliance on the assertion that "in suits sounding in tort for money damages, questions of liability were decided by the jury, rather than the judge, in most cases," ante, at 27. Perhaps this is the reason that the Court apparently seeks to distance itself from the ramifications of today's determination. The Court disclaims any attempt to set a "precise demarcation of the respective provinces of judge and jury in determining whether a zoning decision substantially advances legitimate governmental interests." Ante, at 31. It denies that today's holding would extend to "a broad challenge to the constitutionality of the city's general land-use ordinances or policies," in which case, "the determination whether the statutory purposes were legitimate, or whether the purposes, though legitimate, were furthered by the law or general policy, might well fall within the province of the judge." Ibid. (And the plurality presumably does not mean to address any Seventh Amendment issue that someone might raise when the government has provided an adequate remedy, for example, by recognizing a compensatory action for inverse condemnation, see ante, at 23, 26.) But the Court's reticence is cold comfort simply because it rests upon distinctions that withstand analysis no better than the tort-law analogies on which the Court's conclusion purports to rest. The narrowness of the Court's intentions cannot, therefore, be accepted as an effective limit on the consequences on its reasoning, from which, I respectfully dissent.14 FOOTNOTESFootnote 1 Justice Souter properly notes that "trial by jury is not a uniform feature of §1983 actions." Post, at 20. This does not lead, however, to his desired conclusion that all §1983 actions can therefore not properly be analogized to tort claims. Post, at 9, 20-21. Before the merger of law and equity, a contested right would have to be established at law before relief could be obtained in equity. Thus, a suit in equity to enjoin an alleged nuisance could not be brought until a tort action at law established the right to relief. See 1 J. High, Law of Injunctions 476-477 (2d ed. 1880). Since the merger of law and equity, any type of relief, including purely equitable relief, can be sought in a tort suit — so that I can file a tort action seeking only an injunction against a nuisance. If I should do so, the fact that I seek only equitable relief would disentitle me to a jury, see, e.g., Curtis v. Loether, 415 U. S. 189, 198 (1974); Dairy Queen, Inc. v. Wood, 369 U. S. 469, 471 (1962); Parsons v. Bedford, 3 Pet. 433, 446-447 (1830); E. Re & J. Re, Cases and Materials on Remedies 46 (4th ed. 1996)--but that would not render the nuisance suit any less a tort suit, so that if damages were sought a jury would be required. So also here: Some §1983 suits do not require a jury because only equitable relief is sought. But since they are tort suits, when damages are requested, as they are in the present case, a jury must be provided. Thus, the relief sought is an important consideration in the Seventh Amendment inquiry, but contrary to Justice Souter's belief it is a consideration separate from the determination of the analogous common-law cause of action.Footnote 2 As the Court explains, petitioner forfeited any objection to this standard, see ante, at 12, and I express no view as to its propriety.FOOTNOTESFootnote 1 In Bauman, the Court upheld a statute (providing for condemnation of land for streets) that contemplated a form of jury "differing from an ordinary jury in consisting of less than twelve persons, and in not being required to act with unanimity," and stated that the just compensation determination "may be entrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury." 167 U. S., at 593. The Court relied upon prior cases that had assumed the absence of a constitutional right to a jury determination of just compensation. See, e.g., Shoemaker,147 U. S., at 301-302, 304-305 (upholding statute providing for ascertainment of the value of condemned land by three presidentially appointed commissioners); Jones, 109 U. S., at 519 ("The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate"). See also Kohl v. United States, 91 U. S. 367, 376 (1876) ("That [the right of eminent domain] was not enforced through the agency of a jury is immaterial; for many civil as well as criminal proceedings at common law were without a jury"); Crane v. Hahlo,258 U. S. 142, 147 (1922) ("[T]he reference of such a question [determining the amount of compensation], especially in eminent domain proceedings, to a commission, or board, or sheriff's jury, or other non-judicial tribunal, was so common in England and in this country prior to the adoption of the Federal Constitution that it has been held repeatedly that it is a form of procedure within the power of the State to provide").Footnote 2 Similarly, the Due Process Clause of the Fourteenth Amendment does not require a jury trial in state condemnation proceedings. See, e.g., Long Island Water Supply Co. v. Brooklyn,166 U. S. 685, 694 (1897); Crane,supra, at 147; Dohany v. Rogers,281 U. S. 362, 369 (1930).Footnote 3 Several commentators and courts have advanced theories that a condemnation proceeding is not an action at law, but rather is either some sort of special proceeding, or else an equitable proceeding. See, e.g., H. Mills & A. Abbott, Mills on Law of Eminent Domain §84, p. 225 (2d ed. 1888); id., §91, at 239 ("Condemnation is not an action at law, but an inquisition on the part of the state for the ascertainment of a particular fact, and may be conducted without the intervention of a jury"); 1A J. Sackman, Nichols on Eminent Domain §4.105[1], p. 4-137 (rev. 3d ed. 1998) ("Condemnation proceedings are not suits at common law"). There is some accumulated support for the idea that condemnation proceedings derive from the writ ad quod damnum, which was issued by the courts of equity to the sheriff to conduct an inquest into the amount of damages incurred by a landowner as a result of the taking. Nonetheless, since Kohl v. United States, supra, at 376 the first case involving the Federal Government's exercise of its power of eminent domain, this Court has classified condemnation proceedings as suits at common law.Footnote 4 See, e.g., J. Laitos, Law of Property Rights Protection §12.04[A], pp. 12-12 to 12-13 (1999) ("The police power takings standard also means that the taking prohibition becomes more like a due process check on the police power"; describing two claims as "an identical test").Footnote 5 See n. 1, supra. Moreover, if presence of a liability issue were crucial, then the jury right presumably would be lost in every tort case with liability conceded, which goes to trial on damages alone. Such, of course, is not the practice. See, e.g., Blazar v. Perkins, 463 A. 2d 203, 207 (R. I. 1983) ("The fact that prior to trial, defendants admitted liability, thereby removing one issue from the consideration of the jury, does not alter the application of th[e] principle [that plaintiffs cannot waive a jury trial on the issue of damage when defendants have demanded a jury trial]").Footnote 6 Two of the cases cited by the plurality offer at most tangential support. Plaintiff's claim in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 249 (1833), was dismissed for lack of jurisdiction, on the ground that the Fifth Amendment was not applicable to the States. In Lindsay v. Commissioners, 2 Bay 38 (S. C. 1796), the plaintiff sought a writ of prohibition restraining city commissioners from laying out a street, not damages. While the plurality relies on the opinion of one justice favoring the granting of the writ, the court actually divided equally, the result being denial of the writ. Moreover, even within that opinion, the quoted statement is the equivalent of dictum since it is not necessary to the reasoning in favor of granting the writ.Footnote 7 When an inverse condemnee seeks an injunction (as when a direct condemnee challenges the taking, or a plaintiff claims a substantive due process violation), there is a claim of wrong in the sense of lack of authority. But this is not so in the usual case where damages are sought.Footnote 8 See Williston on Contracts §1.6, pp. 27-28 (4th ed. 1990) (restitution not limited by theory of unjust enrichment).Footnote 9 Of course, §1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan,443 U. S. 137, 144, n. 3 (1979). Accord, Johnson v. University of Wisconsin-Eau Claire, 70 F. 3d 469, 481 (CA7 1995) ("Because §1983 does not create substantive rights, but rather provides a remedy for violations of pre-existing rights, §1983 claims must specifically allege a violation of the Constitution or `laws' of the United States").Footnote 10 Respondents in this case sought damages for the fair market value of the property, interim damages for a temporary taking, holding costs, interest, attorney's fees, costs, and other consequential damages. Complaint pp. 14-15; First Amended Complaint pp. 16-17. The jury was instructed that in calculating damages: "[I]t's up to you to decide the difference in value, the fair market value as a result of the City's decision. Multiply it by an interest rate you think is appropriate, for a length of time you think is appropriate. So those are the three elements of computing the damages claimed if you determine the plaintiff is entitled to recover." 11 Record 1426. Respondents thus sought no incremental "damages" (beyond just compensation) for denial of state compensation procedures. Indeed, the only "damages" available in inverse condemnation cases is the just compensation measured by the value of the land. See supra, at 3. See, e.g., Eide v. Sarasota County, 908 F. 2d 716 (CA11 1990). The fact that no further element of damages is recognized confirms rejection of the tort analogy, for it would be a peculiar tort indeed that did not recognize its concomitant injury in damages. Cf. Miller v. Campbell County, 854 P. 2d 71, 77 (Wyo. 1993) (rejecting reliance on tort law in holding that emotional distress is not a proper element of damages in inverse condemnation actions).Footnote 11 The jury's inverse condemnation verdict did not indicate which of the theories formed the basis of its liability finding: (1) whether the city's action did not substantially advance a legitimate purpose; or (2) whether the city's denial of the permit deprived the subject property of all economically viable use.Footnote 12 I offer no opinion here on whether Agins was correct in assuming that this prong of liability was properly cognizable as flowing from the Just Compensation Clause of the Fifth Amendment, as distinct from the Due Process Clauses of the Fifth and Fourteenth Amendments.Footnote 13 The substantive due process taking claim concentrates on whether the government's aims are "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Village of Euclid v. Ambler Realty Co.,272 U. S. 365, 395 (1926).Footnote 14 I would therefore remand the case. There would be no need for a new trial; the judge could treat the jury's verdict as advisory, so long as he recorded his own findings consistent with the jury's verdict. See Fed. Rule of Civ. Proc. 52(a). |
11 | [ Crane v. Commissioner of Internal Revenue ], 2] Mr. Edward S. Bentley of New York City, for petitioner. Mr. J. Louis Monarch, of Washington, D.C., for respondent. Mr. Chief Justice VINSON delivered the opinion of the Court. The question here is how a taxpayer who acquires depreciable property subject to an unassumed mortgage, holds it for a period, and finally sells it still so encumbered, must compute her taxable gain. , 3] Petitioner was the sole beneficiary and the executrix of the will of her husband, who died January 11, 1932. He then owned an apartment building and lot subject to a mortgage,1 which secured a principal debt of $ 255,000.00 and interest in default of $7,042.50. As of that date, the property was appraised for federal estate tax purposes at a value exactly equal to the total amount of this encumbrance. Shortly after her husband's death, petitioner entered into an agreement with the mortgagee whereby she was to continue to operate the property-collecting the rents, paying for necessary repairs, labor, and other operating expenses, and reserving $200. 00 monthly for taxes-and was to remit the net rentals to the mortgagee. This plan was followed for nearly seven years, during which period petitioner reported the gross rentals as income, and claimed and was allowed deductions for taxes and operating expenses paid on the property, for interest paid on the mortgage, and for the physical exhaustion of the building. Meanwhile, the arrearage of interest increased to $15,857.71. On November 29, 1938, with the mortgagee threatening foreclosure, petitioner sold to a third party for $3,000.00 cash, subject to the mortgage, and paid $500.00 expenses of sale. Petitioner reported a taxable gain of $1,250.00. Her theory was that the 'property' which she had acquired in 1932 and sold in 1938 was only the equity, or the excess in the value of the apartment building and lot over the amount of the mortgage. This equity was of zero value when she acquired it. No depreciation could be taken on a zero value. 2 Neither she nor her vendee ever assumed , 4] the mortgage, so, when she sold the equity, the amount she realized on the sale was the net cash received, or $2,500.00. This sum less the zero basis constituted her gain, of which she reported half as taxable on the assumption that the entire property was a 'capital asset'.3 The Commissioner, however, determined that petitioner realized a net taxable gain of $23,767.03. His theory was that the 'property' acquired and sold was not the equity, as petitioner claimed, but rather the physical property itself, or the owner's rights to possess, use, and dispose of it, undiminished by the mortgage. The original basis thereof was $262,042.50, its appraised value in 1932. Of this value $55,000.00 was allocable to land and $207,042.50 to building. 4 During the period that petitioner held the property, there was an allowable depreciation of $28, 045.10 on the building,5 so that the adjusted basis of the building at the time of sale was $178,997.40. The amount realized on the sale was said to include not only the $2,500.00 net cash receipts, but also the principal amount6 of the mortgage subject to which the property was sold, both totaling $257,500.00. The selling price was allocable in the proportion, $ 54,471.15 to the land and $203,028.85 to the building. 7 The Commissioner agreed that the land was , 5] a 'capital asset', but thought that the building was not. 8 Thus, he dete mined that petitioner sustained a capital loss of $528.85 on the land, of which 50% or $264.42 was taken into account, and an ordinary gain of $24. 031.45 on the building, or a net taxable gain as indicated. The Tax Court agreed with the Commissioner that the building was not a 'capital asset.' In all other respects it adopted petitioner's contentions, and expunged the deficiency. 9 Petitioner did not appeal from the part of the ruling adverse to her, and these questions are no longer at issue. On the Commissioner's appeal, the Circuit Court of Appeals reversed, one judge dissenting. 10 We granted certiorari because of the importance of the questions raised as to the proper construction of the gain and loss provisions of the Internal Revenue Code. 11 The 1938 Act,12 111(a), 26 U.S.C.A. Int.Rev.Code, 111(a), defines the gain from 'the sale or other disposition of property' as 'the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) * * *.' It proceeds, 111(b), to define 'the amount realized from the sale or other disposition of property' as 'the sum of any money received plus , 6] the fair market value of the property (other than money) received.' Further, in 113(b), 26 U.S.C.A. Int.Rev.Code, 113(b), the 'adjusted basis for determining the gain or loss from the sale or other disposition of property' is declared to be 'the basis determined under subsection (a), adjusted * * * ((1)(B)) * * * for exhaustion, wear and tear, obsolescence, amortization * * * to the extent allowed (but not less than the amount allowable) * * *.' The basis under subsection (a) 'if the property was acquired by * * * devise * * * or by the decedent's estate from the decedent', 113(a)(5), is 'the fair market value of such property at the time of such acquisition.' Logically, the first step under this scheme is to determine the unadjusted basis of the property, under 113(a)(5), and the dispute in this case is as to the construction to be given the term 'property'. If 'property', as used in that provision, means the same thing as 'equity', it would necessarily follow that the basis of petitioner's property was zero, as she contends. If, on the contrary, it means the land and building themselves, or the owner's legal rights in them, undiminished by the mortgage, the basis was $262,042.50. We think that the reasons for favoring one of the latter constructions are of overwhelming weight. In the first place, the words of statutes-including revenue acts-should be interpreted where possible in their ordinary, everyday senses. 13 The only relevant definitions of 'property' to be found in the principal standard dictionaries14 are the two favored by the Commissioner, i.e., either that 'property' is the physical thing which is a subject of ownership, or that it is the aggregate of the owner's rights to control and dispose of that thing. , 7] 'Equity' is not given as a synonym, nor do either of the foregoing definitions suggest that it could be correctly so used. Indeed, 'equity' is defined as 'the value of a property * * * above the total of the liens . * * *'15 The contradistinction could hardly be more pointed. Strong countervailing considerations would be required to support a contention that Congress, in using the word 'property', meant 'equity', or that we should impute to it the intent to convey that meaning. 16 In the second place, the Commission's position has the approval of the administrative construction of 113(a)(5). With respect to the valuation of property under that section, Reg. 101, Art. 113(a)(5)-1, promulgated under the 1938 Act, provided that 'the value of property as of the date of the death of the decedent as appraised for the purpose of the federal estate tax * * * shall be deemed to be its fair market value. * * *' The land and building here involved were so appraised in 1932, and their appraised value-$262,042.50-was reported by petitioner as part of the gross estate. This was in accordance with the estate tax law17 and regulations,18 which had always required that the value of decedent's property, undiminished by liens, be so appraised and returned, and that mortgages be separately deducted in computing the net estate. 19 As the quoted provision of the Regula- , 8] tions has been in effect since 1918,20 and as the relevant statutory provision has been repeatedly reenacted since then in substantially the same form,21 the former may itself now be considered to have the force of law. 22 Moreover, in the many instances in other parts of the Act in which Congress has used the word 'property', or expressed the idea of 'property' or 'equity', we find no instances of a misuse of either word or of a confusion of the ideas. 23 In some parts of the Act other than the gain and loss sections, we find 'property' where it is unmistakably used in its ordinary sense. 24 On the other hand where either Congress or the Treasury intended to convey the meaning of 'equity,' it did so by the use of appropriate language. 25 , 9] A further reason why the word 'property' in 113(a) should not be construed to mean 'equity' is the bearing such construction would have on the allowance of deductions for depreciation and on the collateral adjustments of basis. Section 23(l) permits deduction from gross income of 'a reasonable allowance for the exhaustion, wear and tear of property * * *.' Sections 23(n) and 114(a), 26 U.S.C.A. Int.Rev.Code, 23(n), 114(a), declare that the 'basis upon which depletion exhaustion, wear and tear * * * are to be allowed' is the basis 'provided in section 113(b) for the purpose of determining the gain upon the sale' of the property, which is the 113(a) basis 'adjusted * * * for exhaustion, wear and tear * * * to the extent allowed (but not less than the amount allowable) * * *.' Under these provisions, if the mortgagor's equity were the 113(a) basis, it would also be the original basis from which depreciation allowances are deducted. If it is, and if the amount of the annual allowances were to be computed on that value, as would then seem to be required,26 they will represent only a fraction of the cost of the corresponding physical exhaustion, and any recoupment by the mortgagor of the remainder of that cost can be effected only by the reduction of his taxable gain in the year of sale. 27 If, however, the amount of the annual allowances , 10] were to be computed on the value of the property, and then deducted from an equity basis, we would in some instances have to accept deductions from a minus basis or deny deductions altogether. 28 The Commissioner also argues that taking the mortgagor's equity as the 113(a) basis would require the basis to be changed with each payment on the mortgage,29 and that the attendant problem of repeatedly recomputing basis and annual allowances would be a tremendous accounting burden on both the Commissioner and the taxpayer. Moreover, the mortgagor would acquire control over the timing of his depreciation allowances. Thus it appears that the applicable provisions of the Act expressly preclude an equity basis, and the use of it is contrary to certain implicit principles of income tax depreciation, and entails very great administrative difficulties. 30 It may be added that the Treasury has never furnished a guide through the maze of problems that arise in connection with depreciating an equity basis, but, on the contrary, has consistently permitted the amount of depreciation allowances to be computed on the full value of the property, and subtracted from it as a basis. Surely, , 11] Congress' long-continued acceptance of this situation gives it full legislative endorsement. 31 We conclude that the proper basis under 113(a)(5) is the value of the property, undiminished by mortgages thereon, and that the correct basis here was $262,042.50. The next step is to ascertain what adjustments are required under 113(b). As the depreciation rate was stipulated, the only question at this point is whether the Commissioner was warranted in making any depreciation adjustments whatsoever. Section 113(b)(1)(B) provides that 'proper adjustment in respect of the property shall in all cases be made * * * for exhaustion, wear and tear * * * to the extent allowed (but not less than the amount allowable * * *.' The Tax Court found on adequate evidence that the apartment house was property of a kind subject to physical exhaustion, that it was used in taxpayer's trade or business, and consequently that the taxpayer would have been entitled to a depreciation allowance under 23(l), except that, in the opinion of that Court, the basis of the property was zero, and it was thought that depreciation could not be taken on a zero basis. As we have just decided that the correct basis of the property was not zero, but $ 262,042.50, we avoid this difficulty, and conclude that an adjustment should be made as the Commissioner determined. Petitioner urges to the contrary that she was not entitled to depreciation deductions, whatever the basis of the property, because the law allows them only to one who actually bears the capital loss,32 and here the loss was not hers but the mortgagee's. We do not see, however, that she has established her factual premise. There was no finding of the Tax Court to that effect, nor to the effect , 12] that the value of the property was ever less than the amount of the lien. Nor was there evidence in the record, or any indication that petitioner could produce evidence, that this was so. The facts that the value of the property was only equal to the lien in 1932 and that during the next six and one-half years the physical condition of the building deteriorated and the amount of the lien increased, are entirely inconclusive, particularly in the light of the buyer's willingness in 1938 to take subject to the increased lien and pay a substantial amount of cash to boot. Whatever may be the rule as to allowing depreciation to a mortgagor on property in his possession which is subject to an unassumed mortgage and clearly worth less than the lien, we are not faced with that problem and see no reason to decid it now. At last we come to the problem of determining the 'amount realized' on the 1938 sale. Section 111(b), it will be recalled, defines the 'amount realized' from 'the sale * * * of property' as 'the sum of any money received plus the fair market value of the property (other than money) received,' and 111(a) defines the gain on 'the sale * * * of property' as the excess of the amount realized over the basis. Quite obviously, the word 'property', used here with reference to a sale, must mean 'property' in the same ordinary sense intended by the use of the word with reference to acquisition and depreciation in 113, both for certain of the reasons stated heretofore in discussing its meaning in 113, and also because the functional relation of the two sections requires that the word mean the same in one section that it does in the other. If the 'property' to be valued on the date of acquisition is the property free of liens, the 'property' to be priced on a subsequent sale must be the same thing. 33 , 13] Starting from this point, we could not accept petitioner's contention that the $2,500.00 net cash was all she realized on the sale except on the absurdity that she sold a quarter-of-a-million dollar property for roughly one per cent of its value, and took a 99 per cent loss. Actually, petitioner does not urge this. She argues, conversely, that because only $ 2,500.00 was realized on the sale, the 'property' sold must have been the equity only, and that consequently we are forced to accept her contention as to the meaning of 'property' in 113. We adhere, however, to what we have already said on the meaning of 'property', and we find that the absurdity is avoided by our conclusion that the amount of the mortgage is properly included in the 'amount realized' on the sale. Petitioner concedes that if she had been personally liable on the mortgage and the purchaser had either paid or assumed it, the amount so paid or assumed would be considered a part of the 'amount realized' within the meaning of 111(b).34 The cases so deciding have already repudiated the notion that there must be an actual receipt by the seller himself of 'money' or 'other property', in their narrowest senses. It was thought to be decisive that one section of the Act must be construed so as not to defeat the intention of another or to frustrate the Act as a whole,35 and that the taxpayer was the 'beneficiary' of the payment in 'as real and substantial (a sense) as if the money had been paid it and then paid over by it to its creditors.'36 , 14] Both these points apply to this case. The first has been mentioned already. As for the second, we think that a mortgagor, not personally liable on the debt, who sells the property subject to the mortgage and for additional consideration, realizes a benefit in the amount of the mortgage as well as the boot. 37 If a purchaser pays boot, it is immaterial as to our problem whether the mortgagor is also to receive money from the purchaser to discharge the mortgage prior to sale, or whether he is merel to transfer subject to the mortgage-it may make a difference to the purchaser and to the mortgagee, but not to the mortgagor. Or put in another way, we are no more concerned with whether the mortgagor is, strictly speaking, a debtor on the mortgage, than we are with whether the benefit to him is, strictly speaking, a receipt of money or property. We are rather concerned with the reality that an owner of property, mortgaged at a figure less than that at which the property will sell, must and will treat the conditions of the mortgage exactly as if they were his personal obligations. 38 If he transfers subject to the mortgage, the benefit to him is as real and substantial as if the mortgage were discharged, or as if a personal debt in an equal amount had been assumed by another. Therefore we conclude that the Commissioner was right in determining that petitioner realized $257,500.00 on the sale of this property. , 15] The Tax Court's contrary determinations, that 'property', as used in 113(a) and related sections, means 'equity', and that the amount of a mortgage subject to which property is sold is not the measure of a benefit realized, within the meaning of 111(b), announced rules of general applicability on clear-cut questions of law. 39 The Circuit Court of Appeals therefore had jurisdiction to review them. 40 Petitioner contends that the result we have reached taxes her on what is not income within the meaning of the Sixteenth Amendment. If this is because only the direct receipt of cash is thought to be income in the constitutional sense, her contention is wholly without merit. 41 If it is because the entire transaction is thought to have been 'by all dictates of common-sense * * * a ruinous disaster', as it was termed in her brief, we disagree with her premise. She was entitled to depreciation deductions for a period of nearly seven years, and she actually took them in almost the allowable amount. The crux of this case, really, is whether the law permits her to exclude allowable deductions from consideration in computing gain. 42 We have , 16] already showed that, if it does, the taxpayer can enjoy a double deduction, in effect, on the same loss of assets. The Sixteenth Amendment does not require that result any more than does the Act itself. Affirmed. Mr. Justice JACKSON, dissenting. The Tax Court concluded that this taxpayer acquired only an equity worth nothing. The mortgage was in default, the mortgage debt was equal to the value of the property, and possession by the taxpayer was forfeited and terminable immediately by foreclosure, and perhaps by a receiver pendente lite. Arguments can be advanced to support the theory that the taxpayer received the whole property and thereupon came to owe the whole debt. Likewise it is argued that when she sold she transferred the entire value of the property and received release from the whole debt. But we think these arguments are not so conclusive that it was not within the province of the Tax Court to find that she received an equity which at that time had a zero value. Dobson v. Commissioner, ; Commissioner v. Scottish American Investment Co., Ltd., . The taxpayer never became personally liable for the debt, and hence when she sold she was released from no debt. The mortgage debt was simply a subtraction from the value of what she did receive, and from what she sold. The subtraction left her nothing when she acquired it and a small margin when she sold it. She acquired a property right equivalent to an equity of redemption and sold the same thing. It was the 'property' bought and sold as the Tax Court considered it to be under the Revenue Laws. We are not required in this case to decide whether depreciation was properly taken, for there is no issue about it here. , 17] We would reverse the Court of Appeals and sustain the decision of the Tax Court. Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS join in this opinion. |
6 | The National Labor Relations Board has promulgated a rule providing that, with exceptions for, inter alia, cases presenting "extraordinary circumstances," eight, and only eight, defined employee units are appropriate for collective bargaining in acute care hospitals. Petitioner, American Hospital Association, brought this action challenging the rule's facial validity on the grounds that (1) 9(b) of the National Labor Relations Act (NLRA) requires the Board to make a separate bargaining unit determination "in each case," and therefore prohibits the Board from using general rules to define bargaining units; (2) the rule violates a congressional admonition to the Board to avoid the undue proliferation of bargaining units in the health care industry; and (3) the rule is arbitrary and capricious. The District Court agreed with petitioner's second argument and enjoined the rule's enforcement, but the Court of Appeals found no merit in any of the three arguments, and reversed.Held: The Board's rule is not facially invalid. Pp. 609-620. (a) The Board's broad rulemaking powers under 6 of the NLRA authorize the rule and are not limited by 9(b)'s mandate that the Board decide the appropriate bargaining unit "in each case." Contrary to petitioner's reading, the clear and more natural meaning of the "in each case" requirement is simply to indicate that, whenever there is a disagreement between employers and employees about the appropriateness of a bargaining unit, the Board shall resolve the dispute. In doing so, the Board is entitled to rely on rules that it has developed to resolve certain issues of general applicability. See, e. g., United States v. Storer Broadcasting Co., . The rule at issue does not differ significantly from the Board's many prior rules establishing general principles for the adjudication of bargaining unit disputes. This interpretation is reinforced by the NLRA's structure and policy. Nor is petitioner aided by 9(b)'s sparse legislative history. Even if any ambiguity could be found in 9(b) after application of the traditional tools of statutory construction, this Court would still defer to the Board's reasonable interpretation of the statutory text. Pp. 609-614. (b) The rule is not rendered invalid by the admonition, contained in congressional Reports accompanying the 1974 extension of NLRA coverage to all acute care hospitals, that the Board should give "[d]ue consideration ... to preventing proliferation of bargaining units in the health care industry." The argument that the admonition - when coupled with Congress' 1973 rejection of a bill that would have placed a general limit of five on the number of hospital bargaining units - evinces an intent to emphasize the importance of 9(b)'s "in each case" requirement is no more persuasive than petitioner's reliance on 9(b) itself. Moreover, even if this Court accepted petitioner's further suggestion that the admonition is an authoritative statement of what Congress intended by the 1974 legislation, the admonition must be read to express the desire that the Board consider the special problems that proliferation might create in acute care hospitals. An examination of the rulemaking record reveals that the Board gave extensive consideration to this very issue. In any event, the admonition is best understood as a congressional warning to the Board, and Congress is free to fashion a remedy for noncompliance if it believes that the Board has not given "due consideration" to the problem of proliferation in this industry. Pp. 614-617. (c) The rule is not, as petitioner contends, arbitrary and capricious because it ignores critical differences among the many acute care hospitals in the country. The Board's conclusion that, absent extraordinary circumstances, such hospitals do not differ in substantial, significant ways relating to the appropriateness of units was based on a "reasoned analysis" of an extensive rulemaking record and on the Board's years of experience in the adjudication of health care cases. Pp. 617-619. 899 F.2d 651 (CA7 1990), affirmed.STEVENS, J., delivered the opinion for a unanimous Court.James D. Holzhauer argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, Arthur R. Miller, and Rhonda A. Rhodes.Deputy Solicitor General Shapiro argued the cause for respondents. With him on the brief for respondent National Labor Relations Board were Solicitor General Starr, Stephen L. Nightingale, Robert E. Allen, Norton J. Come, and Linda Sher. Wendy N. Peterson, David Silberman, Laurence Gold, Helen Morgan, Richard Griffin, Michael Fanning, Miriam Gafni, James Grady, Jonathan Hiatt, Richard Kirschner, Bruce Miller, Patrick Scanlon, and George Murphy filed a brief for respondents American Nurses Association et al.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Fairfax Hospital System, the Maryland Hospital Association, Inc., and the Virginia Hospital Association by John G. Kruchko and Paul M. Lusky; for the California Association of Hospitals and Health Systems et al. by Robert M. Stone and Dana D. Howells; for the Greater Cincinnati Hospital Council by Lawrence J. Barty and Frank H. Stewart; for the Hospital Association of Pennsylvania et al. by John E. Lyncheski and Michael J. Reilly; for the Society for Human Resource Management by Glen D. Nager; for the Missouri Hospital Association by E. J. Holland, Jr.; for St. Francis Hospital, Inc., of Memphis by Jeff Weintraub; and for William Beaumont Hospital et al. by Theodore R. Opperwall.Lawrence Rosenzweig filed a brief for the Union of American Physicians and Dentists as amicus curiae urging affirmance.JUSTICE STEVENS delivered the opinion of the Court.For the first time since the National Labor Relations Board was established in 1935, the Board has promulgated a substantive rule defining the employee units appropriate for collective bargaining in a particular line of commerce. The rule is applicable to acute care hospitals, and provides, with three exceptions, that eight and only eight units shall be appropriate in any such hospital. The three exceptions are for cases that present extraordinary circumstances, cases in which nonconforming units already exist, and cases in which labor organizations seek to combine two or more of the eight specified units. The extraordinary circumstances exception applies automatically to hospitals in which the eight unit rule will produce a unit of five or fewer employees. See 29 CFR 103.30 (1990).Petitioner, American Hospital Association, brought this action challenging the facial validity of the rule on three grounds: first, petitioner argues that 9(b) of the National Labor Relations Act requires the Board to make a separate bargaining unit determination "in each case," and therefore prohibits the Board from using general rules to define bargaining units; second, petitioner contends that the rule that the Board has formulated violates a congressional admonition to the Board to avoid the undue proliferation of bargaining units in the health care industry; and, finally, petitioner maintains that the rule is arbitrary and capricious.The United States District Court for the Northern District of Illinois agreed with petitioner's second argument and enjoined enforcement of the rule. 718 F.Supp. 704 (1989). The Court of Appeals found no merit in any of the three arguments, and reversed. 899 F.2d 651 (CA7 1990). Because of the importance of the case, we granted certiorari, . We now affirm.IPetitioner's first argument is a general challenge to the Board's rulemaking authority in connection with bargaining unit determinations based on the terms of the National Labor Relations Act (NLRA), 49 Stat. 449, 29 U.S.C. 151 et seq., as originally enacted in 1935. In 1 of the NLRA, Congress made the legislative finding that the "inequality of bargaining power" between unorganized employees and corporate employers had adversely affected commerce, and declared it to be the policy of the United States to mitigate or eliminate those adverse effects "by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." 29 U.S.C. 151. The central purpose of the Act was to protect and facilitate employees' opportunity to organize unions to represent them in collective-bargaining negotiations.Sections 3, 4, and 5 of the Act created the Board and generally described its powers. 153-155. Section 6 granted the Board the "authority from time to time to make, amend, and rescind ... such rules and regulations as may be necessary to carry out the provisions" of the Act. 156. This grant was unquestionably sufficient to authorize the rule at issue in this case unless limited by some other provision in the Act.Petitioner argues that 9(b) provides such a limitation because this section requires the Board to determine the appropriate bargaining unit "in each case." 159(b). We are not persuaded. Petitioner would have us put more weight on these three words than they can reasonably carry.Section 9(a) of the Act provides that the representative "designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes" shall be the exclusive bargaining representative for all the employees in that unit. 159(a). This section, read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees. Moreover, the language suggests that employees may seek to organize "a unit" that is "appropriate" - not necessarily the single most appropriate unit. See, e. g., Trustees of Masonic Hall and Asylum Fund v. NLRB, 699 F.2d 626, 634 (CA2 1983); State Farm Mutual Automobile Ins. Co. v. NLRB, 411 F.2d 356, 358 (CA7) (en banc), cert. denied, ; Friendly Ice Cream Corp. v. NLRB, 705 F.2d 570, 574 (CA1 1983); Local 627, Int'l Union of Operating Engineers v. NLRBApp. D.C. 37, 41, 595 F.2d 844, 848 (1979); NLRB v. Western Southern Life Ins. Co., 391 F.2d 119, 123 (CA3), cert. denied, . Thus, one union might seek to represent all of the employees in a particular plant, those in a particular craft, or perhaps just a portion thereof.Given the obvious potential for disagreement concerning the appropriateness of the unit selected by the union seeking recognition by the employer - disagreements that might involve rival unions claiming jurisdiction over contested segments of the workforce, as well as disagreements between management and labor - 9(b) authorizes the Board to decide whether the designated unit is appropriate. See Hearings on S. 1958 before the Senate Committee on Education and Labor, pt. 1, p. 82 (1935) (hereinafter Hearings), 1 Legislative History of the National Labor Relations Act 1935, p. 1458 (hereinafter Legislative History) (testimony of Francis Biddle, Chairman of National Relations Board); H. R. Rep. No. 972, 74th Cong., 1st Sess., 20 (1935), 2 Legislative History 2976. Section 9(b) provides: "The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." (Emphasis added.) Petitioner reads the emphasized phrase as a limitation on the Board's rulemaking powers. Although the contours of the restriction that petitioner ascribes to the phrase are murky, petitioner's reading of the language would prevent the Board from imposing any industry-wide rule delineating the appropriate bargaining units. We believe petitioner's reading is inconsistent with the natural meaning of the language read in the context of the statute as a whole.The more natural reading of these three words is simply to indicate that, whenever there is a disagreement about the appropriateness of a unit, the Board shall resolve the dispute. Under this reading, the words "in each case" are synonymous with "whenever necessary" or "in any case in which there is a dispute." Congress chose not to enact a general rule that would require plant unions, craft unions or industry-wide unions for every employer in every line of commerce, but also chose not to leave the decision up to employees or employers alone. Instead, the decision "in each case" in which a dispute arises is to be made by the Board.In resolving such a dispute, the Board's decision is presumably to be guided not simply by the basic policy of the Act, but also by the rules that the Board develops to circumscribe and to guide its discretion either in the process of case-by-case adjudication or by the exercise of its rulemaking authority. The requirement that the Board exercise its discretion in every disputed case cannot fairly or logically be read to command the Board to exercise standardless discretion in each case. As a noted scholar on administrative law has observed: "[T]he mandate to decide `in each case' does not prevent the Board from supplanting the original discretionary chaos with some degree of order, and the principal instruments for regularizing the system of deciding `in each case' are classifications, rules, principles, and precedents. Sensible men could not refuse to use such instruments and a sensible Congress would not expect them to." K. Davis, Administrative Law Text 6.04, 145 (3d ed. 1972).This reading of the "in each case" requirement comports with our past interpretations of similar provisions in other regulatory statutes. See United States v. Storer Broadcasting Co., ; FPC v. Texaco, Inc., ; Heckler v. Campbell, . These decisions confirm that, even if a statutory scheme requires individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.Even petitioner acknowledges that "the Board could adopt rules establishing general principles to guide the required case-by-case bargaining unit determinations." Brief for Petitioner 19. Petitioner further acknowledges that the Board has created many such rules in the half-century during which it has adjudicated bargaining unit disputes. Reply Brief for Petitioner 8-11. Petitioner contends, however, that a rule delineating the appropriate bargaining unit for an entire industry is qualitatively different from these prior rules, which, at most, established rebuttable presumptions that certain units would be considered appropriate in certain circumstances. We simply cannot find in the three words "in each case" any basis for the fine distinction that petitioner would have us draw. Contrary to petitioner's contention, the Board's rule is not an irrebuttable presumption; instead, it contains an exception for "extraordinary circumstances." Even if the rule did establish an irrebuttable presumption, it would not differ significantly from the prior rules adopted by the Board. As with its prior rules, the Board must still apply the rule "in each case." For example, the Board must decide in each case, among a host of other issues, whether a given facility is properly classified as an acute care hospital and whether particular employees are properly placed in particular units.Our understanding that the ordinary meaning of the statutory language cannot support petitioner's construction is reinforced by the structure and the policy of the NLRA. As a matter of statutory drafting, if Congress had intended to curtail in a particular area the broad rulemaking authority granted in 6, we would have expected it to do so in language expressly describing an exception from that section or at least referring specifically to the section. And, in regard to the Act's underlying policy, the goal of facilitating the organization and recognition of unions is certainly served by rules that define in advance the portions of the workforce in which organizing efforts may properly be conducted.The sparse legislative history of the provision affords petitioner no assistance. That history reveals that the phrase was one of a group of "small amendments" suggested by the Secretary of Labor "for the sake of clarity." See Senate Committee on Education and Labor, Memorandum Comparing S. 2926 and S. 1958, 74th Cong., 1st Sess., 9 (Comm. Print 1935), 1 Legislative History 1332, Hearings, pt. 1, 1442, 1445; Hearings on H.R. 6288 before the House Committee on Labor, 74th Cong., 1st Sess., 283-284 (1935), 2 Legislative History 2757-2758. If this amendment had been intended to place the important limitation on the scope of the Board's rulemaking powers that petitioner suggests, we would expect to find some expression of that intent in the legislative history. Cf. Harrison v. PPG Industries, Inc., (REHNQUIST, J., dissenting).The only other relevant legislative history adds nothing to the meaning conveyed by the text that was enacted. Petitioner relies on a comment in the House Committee on Labor Report that the matter of the appropriate unit "is obviously one for determination in each individual case, and the only possible workable arrangement is to authorize the impartial government agency, the Board, to make that determination." H.R.Rep. No. 972, 74th Cong., 1st Sess., 20 (1935), reprinted in 2 Legislative History 2976. This comment, however, simply restates our reading of the statute as requiring that the Board decide the appropriate unit in every case in which there is a dispute. The Report nowhere suggests that the Board cannot adopt generally applicable rules to guide its "determination in each individual case."In sum, we believe that the meaning of 9(b)'s mandate that the Board decide the appropriate bargaining unit "in each case" is clear and contrary to the meaning advanced by petitioner. Even if we could find any ambiguity in 9(b) after employing the traditional tools of statutory construction, we would still defer to the Board's reasonable interpretation of the statutory text. Chevron USA Inc. v. Natural Resources Defense Council, Inc., . We thus conclude that 9(b) does not limit the Board's rulemaking authority under 6.IIConsideration of petitioner's second argument requires a brief historical review of the application of federal labor law to acute care hospitals. Hospitals were "employers" under the terms of the NLRA as enacted in 1935, but in 1947, Congress excepted not-for-profit hospitals from the coverage of the Act. See 29 U.S.C. 152(2) (1970) (repealed, 1974). In 1960, the Board decided that proprietary hospitals should also be excepted, see Flatbush General Hospital, 126 N.L.R.B. 144, 145, but this position was reversed in 1967, see Butte Medical Properties, 168 N.L.R.B. 266, 268.In 1973, Congress addressed the issue and considered bills that would have extended the Act's coverage to all private health care institutions, including not-for-profit hospitals. The proposed legislation was highly controversial, largely because of the concern that labor unrest in the health care industry might be especially harmful to the public. Moreover, the fact that so many specialists are employed in the industry created the potential for a large number of bargaining units, in each of which separate union representation might multiply management's burden in negotiation and might also increase the risk of strikes. Motivated by these concerns, Senator Taft introduced a bill that would have repealed the exemption for hospitals, but also would have placed a limit of five on the number of bargaining units in nonprofit health care institutions. S. 2292, 93d Cong., 1st Sess. (1973). Senator Taft's bill did not pass.In the second session of the same Congress, however, the National Labor Relations Act Amendments of 1974 were enacted. See 88 Stat. 395. These amendments subjected all acute care hospitals to the coverage of the Act, but made no change in the Board's authority to determine the appropriate bargaining unit in each case. See ibid. Both the House and the Senate Committee Reports on the legislation contained this statement: "EFFECT ON EXISTING LAW "Bargaining Units"Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50, 85 LRRM 1093 (1974), and Woodland Park Hospital, 205 NLRB No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 LRRM 1242 (1973).[*] [*] By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision.See S. Rep. No. 93-766, p. 5 (1974); H.R. Rep. No. 93-1051, pp. 6-7 (1974) U.S. Code Cong. & Admin.News 1974, pp. 3946, 3950.Petitioner does not - and obviously could not - contend that this statement in the Committee Reports has the force of law, for the Constitution is quite explicit about the procedure that Congress must follow in legislating. Nor, in view of the fact that Congress refused to enact the Taft bill that would have placed a limit of five on the number of hospital bargaining units, does petitioner argue that eight units necessarily constitute proliferation. Rather, petitioner's primary argument is that the admonition, when coupled with the rejection of a general rule imposing a five-unit limit, evinces Congress' intent to emphasize the importance of the "in each case" requirement in 9(b).We find this argument no more persuasive than petitioner's reliance on 9(b) itself. Assuming that the admonition was designed to emphasize the requirement that the Board determine the appropriate bargaining unit in each case, we have already explained that the Board's rule does not contravene this mandate. See Part I, supra.Petitioner also suggests that the admonition "is an authoritative statement of what Congress intended when it extended the Act's coverage to include nonproprietary hospitals." Brief for Petitioner 30. Even if we accepted this suggestion, we read the admonition as an expression by the Committees of their desire that the Board give "due consideration" to the special problems that "proliferation" might create in acute care hospitals. Examining the record of the Board's rulemaking proceeding, we find that it gave extensive consideration to this very issue. See App. 20, 78-84, 114, 122, 131, 140, 158-159, 191-194, 246-254.* In any event, we think that the admonition in the Committee Reports is best understood as a form of notice to the Board that, if it did not give appropriate consideration to the problem of proliferation in this industry, Congress might respond with a legislative remedy. So read, the remedy for noncompliance with the admonition is in the hands of the body that issued it. Cf. Public Employees Retirement System of Ohio v. Betts, (legislative history that cannot be tied to the enactment of specific statutory language ordinarily carries little weight in judicial interpretation of the statute). If Congress believes that the Board has not given "due consideration" to the issue, Congress may fashion an appropriate response.IIIPetitioner's final argument is that the rule is arbitrary and capricious because "it ignores critical differences among the more than 4,000 acute-care hospitals in the United States, including differences in size, location, operations, and work-force organization." Brief for Petitioner 39. Petitioner supports this argument by noting that, in at least one earlier unit determination, the Board had commented that the diverse character of the health care industry precluded generalizations about the appropriateness of any particular bargaining unit. See St. Francis Hospital, 271 N.L.R.B. 948, 953, n. 39 (1984), remanded sub nom. Electrical Workers v. NLRBApp. D.C. 168, 814 F.2d 697 (1987).The Board responds to this argument by relying on the extensive record developed during the rulemaking proceedings, as well as its experience in the adjudication of health care cases during the 13-year period between the enactment of the health care amendments and its notice of proposed rulemaking. Based on that experience, the Board formed the "considered judgment" that "acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units." App. 188-189. Moreover, the Board argues, the exception for "extraordinary circumstances" is adequate to take care of the unusual case in which a particular application of the rule might be arbitrary.We do not believe that the challenged rule is inconsistent with the Board's earlier comment on diversity in the health care industry. The comment related to the entire industry, whereas the rule does not apply to many facilities, such as nursing homes, blood banks, and outpatient clinics. See St. Francis, 271 N.L.R.B. at 953, n. 39. Moreover, the Board's earlier discussion "anticipate[d] that after records have been developed and a number of cases decided from these records, certain recurring factual patterns will emerge and illustrate which units are typically appropriate." See ibid.Given the extensive notice and comment rulemaking conducted by the Board, its careful analysis of the comments that it received, and its well-reasoned justification for the new rule, we would not be troubled even if there were inconsistencies between the current rule and prior NLRB pronouncements. The statutory authorization "from time to time to make, amend, and rescind" rules and regulations expressly contemplates the possibility that the Board will reshape its policies on the basis of more information and experience in the administration of the Act. See 29 U.S.C. 156. The question whether the Board has changed its view about certain issues or certain industries does not undermine the validity of a rule that is based on substantial evidence and supported by a "reasoned analysis." See Motor Vehicle Mfrs. Assn. v. State Farm Mutual Automobile Ins. Co., , 57 (1983).The Board's conclusion that, absent extraordinary circumstances, "acute care hospitals do not differ in substantial, significant ways relating to the appropriateness of units," App. 189, was based on a "reasoned analysis" of an extensive record. See 463 U.S., at 57. The Board explained that diversity among hospitals had not previously affected the results of bargaining unit determinations, and that diversification did not make rulemaking inappropriate. See App. 55-59. The Board justified its selection of the individual bargaining units by detailing the factors that supported generalizations as to the appropriateness of those units. See, e. g., id. at 93-94, 97, 98, 101, 118-120, 123-129, 133-140.The fact that petitioner can point to a hypothetical case in which the rule might lead to an arbitrary result does not render the rule "arbitrary or capricious." This case is a challenge to the validity of the entire rule in all its applications. We consider it likely that, presented with the case of an acute care hospital to which its application would be arbitrary, the Board would conclude that "extraordinary circumstances" justified a departure from the rule. See 29 CFR 103.30(a), (b) (1990). Even assuming, however, that the Board might decline to do so, we cannot conclude that the entire rule is invalid on its face. See Illinois Commerce Commission v. Interstate Commerce CommissionApp. D.C. 389, 393-394, 776 F.2d 355, 359360 (1985) (Scalia, J.); Aberdeen & Rockfish R. Co. v. United States, 682 F.2d 1092, 1105 (CA5 1982); Cf. FDIC v. Mallen, ("A statute such as this is not to be held unconstitutional simply because it may be applied in an arbitrary or unfair way in some hypothetical case not before the Court"). In this opinion, we have deliberately avoided any extended comment on the wisdom of the rule, the propriety of the specific unit determinations, or the importance of avoiding work stoppages in acute care hospitals. We have pretermitted such discussion not because these matters are unimportant, but because they primarily concern the Board's exercise of its authority rather than the limited scope of our review of the legal arguments presented by petitioner. Because we find no merit in any of these legal arguments, the judgment of the Court of Appeals is affirmed.It is so ordered.[Footnote *] We further note that the Board's rule is fully consistent with the two NLRB case holdings expressly approved by the admonition. In one of those cases, the Board refused to approve a bargaining unit composed of only x-ray technicians, and instead ruled that all technical workers should be grouped together. See Woodland Park Hospital, Inc., 205 N.L.R.B. 888-889 (1973). In the other case, the Board refused to permit a unit of only two employees. See Four Seasons Nursing Center of Joliet, 208 N.L.R.B. 403 (1974). The current rule authorizes a single unit for all technical workers and prohibits units of fewer than five employees. See 29 CFR 103.30(a) (1990). |
0 | A Missouri statute provides that any person who commits any felony under the laws of the State through the use of a dangerous or deadly weapon is also guilty of the crime of armed criminal action punishable by imprisonment for not less than three years, which punishment shall be in addition to any punishment provided by law for the felony. Another Missouri statute provides that any person convicted of the felony of first-degree robbery by means of a dangerous and deadly weapon shall be punished by imprisonment for not less than five years. Respondent, as the result of a robbery of a supermarket in which he used a revolver, was convicted in a Missouri state court of both first-degree robbery and armed criminal action, and pursuant to the statutes was sentenced to concurrent prison terms of 10 years for robbery and 15 years for armed criminal action. The Missouri Court of Appeals reversed respondent's conviction and sentence for armed criminal action on the ground that his sentence for both robbery and armed criminal action violated the protection against multiple punishments for the same offense provided by the Double Jeopardy Clause of the Fifth Amendment as made applicable to the states by the Fourteenth Amendment. The court construed the robbery and armed criminal action statutes as defining the "same offense" under the test announced in Blockburger v. United States, , i. e., where the same act or transaction constitutes a violation of two distinct statutes, the test for determining whether there are two offenses or only one, is whether each statute requires proof of a fact which the other does not.Held: Respondent's conviction and sentence for both armed criminal action and first-degree robbery in a single trial did not violate the Double Jeopardy Clause. Pp. 365-369. (a) With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Pp. 365-368. (b) Simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. Whalen v. United States, ; Albernaz v. United States, . The rule of statutory construction whereby cumulative punishments are not permitted "in the absence of a clear indication of contrary legislative intent," Whalen, supra, at 692, is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Accordingly, where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecution may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial. Pp. 368-369. 622 S. W. 2d 374, vacated and remanded.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 369.Philip M. Koppe, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief were John Ashcroft, Attorney General, and Steven W. Garrett, Assistant Attorney General.Gary L. Gardner argued the cause for respondent. With him on the brief was James W. Fletcher.* [Footnote *] Briefs of amici curiae urging reversal were filed by Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, Elliott Schulder, and Mervyn Hamburg for the United States; and by William L. Cahalan, Edward Reilly Wilson, and Timothy A. Baughman for the Wayne County Prosecutor's Office.CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider whether the prosecution and conviction of a criminal defendant in a single trial on both a charge of "armed criminal action" and a charge of first-degree robbery - the underlying felony - violates the Double Jeopardy Clause of the Fifth Amendment.IOn the evening of November 24, 1978, respondent and two accomplices entered an A & P supermarket in Kansas City, Missouri. Respondent entered the store manager's office and ordered the manager, at gunpoint, to open two safes. While the manager was complying with the demands of the robbers, respondent struck him twice with the butt of his revolver. While the robbery was in progress, an employee who drove in front of the store observed the robbery and went to a nearby bank to alert an off-duty police officer. That officer arrived at the front of the store and ordered the three men to stop. Respondent fired a shot at the officer and the officer returned the fire but the trio escaped.Respondent and his accomplices were apprehended. In addition to being positively identified by the store manager and the police officer at trial and in a lineup, respondent made an oral and written confession which was admitted in evidence. At his trial, respondent offered no direct evidence and was convicted of robbery in the first degree, armed criminal action, and assault with malice.Missouri's statute proscribing robbery in the first degree, Mo. Rev. Stat. 560.120 (1969), provides: "Every person who shall be convicted of feloniously taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; or who shall be convicted of feloniously taking the property of another from the person of his wife, servant, clerk or agent, in charge thereof, and against the will of such wife, servant, clerk or agent by violence to the person of such wife, servant, clerk or agent, or by putting him or her in fear of some immediate injury to his or her person, shall be adjudged guilty of robbery in the first degree." Missouri Rev. Stat. 560.135 (Supp. 1975) prescribes the punishment for robbery in the first degree and provides in pertinent part: "Every person convicted of robbery in the first degree by means of a dangerous and deadly weapon and every person convicted of robbery in the first degree by any other means shall be punished by imprisonment by the division of corrections for not less than five years ... ." Missouri Rev. Stat. 559.225 (Supp. 1976) proscribes armed criminal action and provides in pertinent part:"[A]ny person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous or deadly weapon is also guilty of the crime of armed criminal action and, upon conviction, shall be punished by imprisonment by the division of corrections for a term of not less than three years. The punishment imposed pursuant to this subsection shall be in addition to any punishment provided by law for the crime committed by, with, or through the use, assistance, or aid of a dangerous or deadly weapon. No person convicted under this subsection shall be eligible for parole, probation, conditional release or suspended imposition or execution of sentence for a period of three calendar years." Pursuant to these statutes respondent was sentenced to concurrent terms of (a) 10 years' imprisonment for the robbery; (b) 15 years for armed criminal action; and (c) to a consecutive term of 5 years' imprisonment for assault, for a total of 20 years.On appeal to the Missouri Court of Appeals, respondent claimed that his sentence for both robbery in the first degree and armed criminal action violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution made applicable to the states by the Fourteenth Amendment. The Missouri Court of Appeals agreed and reversed respondent's conviction and 15-year sentence for armed criminal action. 622 S. W. 2d 374 (1981). The Court of Appeals relied entirely upon the holding of the Missouri Supreme Court opinions in State v. Haggard, 619 S. W. 2d 44 (1981); Sours v. State, 593 S. W. 2d 208 (Sours I), vacated and remanded, ; and Sours v. State, 603 S. W. 2d 592 (1980) (Sours II), cert. denied, . The State's timely alternative motion for rehearing or transfer to the Missouri Supreme Court was denied by the Court of Appeals on September 15, 1981. The Missouri Supreme Court denied review on November 10, 1981.We granted certiorari, , and we vacate and remand.IIThe Missouri Supreme Court first adopted its challenged approach to the Double Jeopardy issue now before us in Sours I, supra.1 In that case, as here, the defendant was convicted and sentenced separately for robbery in the first degree and armed criminal action based on the robbery. The Missouri Supreme Court concluded that under the test announced in Blockburger v. United States, , armed criminal action and any underlying offense are the "same offense" under the Fifth Amendment's Double Jeopardy Clause. That court acknowledged that the Missouri Legislature had expressed its clear intent that a defendant should be subject to conviction and sentence under the armed criminal action statute in addition to any conviction and sentence for the underlying felony. 593 S. W. 2d, at 216. The court nevertheless held that the Double Jeopardy Clause "prohibits imposing punishment for both armed criminal action and for the underlying felony." Id., at 223 (footnote omitted). It then set aside the defendant's conviction for armed criminal action.2 When the State sought review here in Sours I, we remanded the case for reconsideration in light of our holding in Whalen v. United States, . Missouri v. Sours, . On remand, in Sours II, supra, the Missouri Supreme Court adhered to its previous ruling that armed criminal action and the underlying felony are the "same offense" and that the Double Jeopardy Clause bars separate punishment of a defendant for each offense, notwithstanding the acknowledged intent of the legislature to impose two separate punishments for the two defined offenses.3 Most recently, in State v. Haggard, supra, the Missouri Supreme Court reexamined its decisions in Sours I, supra, and Sours II, supra, in light of our 1981 holding in Albernaz v. United States, .4 The Missouri court, however, remained unpersuaded, stating: "Until such time as the Supreme Court of the United States declares clearly and unequivocally that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution does not apply to the legislative branch of government, we cannot do other than what we perceive to be our duty to refuse to enforce multiple punishments for the same offense arising out of a single transaction." 619 S. W. 2d, at 51. This view manifests a misreading of our cases on the meaning of the Double Jeopardy Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a legislature constitutionally can prescribe cumulative punishments for violation of its first-degree robbery statute and its armed criminal action statute.IIIThe Double Jeopardy Clause is cast explicitly in terms of being "twice put in jeopardy." We have consistently interpreted it "`to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.'" Burks v. United States, , quoting Green v. United States, . Because respondent has been subjected to only one trial, it is not contended that his right to be free from multiple trials for the same offense has been violated. Rather, the Missouri court vacated respondent's conviction for armed criminal action because of the statements of this Court that the Double Jeopardy Clause also "protects against multiple punishments for the same offense." North Carolina v. Pearce, . Particularly in light of recent precedents of this Court, it is clear that the Missouri Supreme Court has misperceived the nature of the Double Jeopardy Clause's protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.In Whalen v. United States, supra, we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was contrary to federal statutory and constitutional law. A divided Court relied on Blockburger v. United States, , in holding that the two statutes in controversy proscribed the "same" offense. The opinion in Blockburger stated:"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id., at 304. In Whalen we also noted that Blockburger established a rule of statutory construction in these terms:"The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the `same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." 445 U.S., at 691-692 (emphasis added). We went on to emphasize the qualification on that rule:"[W]here the offenses are the same ... cumulative sentences are not permitted, unless elsewhere specially authorized by Congress." Id., at 693 (emphasis added). It is clear, therefore, that the result in Whalen turned on the fact that the Court saw no "clear indication of contrary legislative intent." Accordingly, under the rule of statutory construction, we held that cumulative punishment could not be imposed under the two statutes.In Albernaz v. United States, , we addressed the issue whether a defendant could be cumulatively punished in a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana. There, in contrast to Whalen, we concluded that the two statutes did not proscribe the "same" offense in the sense that "`each provision requires proof of a fact [that] the other does not.'" 450 U.S., at 339, quoting Blockburger, supra, at 304. We might well have stopped at that point and upheld the petitioners' cumulative punishments under the challenged statutes since cumulative punishment can presumptively be assessed after conviction for two offenses that are not the "same" under Blockburger. See, e. g., American Tobacco Co. v. United States, . However, we went on to state that because"[t]he Blockburger test is a `rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz v. United States, 450 U.S., at 340 (emphasis added). We found "[n]othing ... in the legislative history which ... discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test." Ibid. We concluded our discussion of the impact of clear legislative intent on the Whalen rule of statutory construction with this language: "[T]he question of what punishments are constitutionally permissible is no different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." 450 U.S., at 344 (emphasis added) (footnote omitted). Here, the Missouri Supreme Court has construed the two statutes at issue as defining the same crime. In addition, the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court's construction of that State's statutes. See O'Brien v. Skinner, . However, we are not bound by the Missouri Supreme Court's legal conclusion that these two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.Our analysis and reasoning in Whalen and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court's power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.5 Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.Accordingly, the judgment of the Court of Appeals of Missouri, Western District, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. |
7 | After appellants had acquired five acres of unimproved land in appellee city for residential development, the city was required by California law to prepare a general plan governing land use and the development of open-space land. In response, the city adopted zoning ordinances that placed appellants' property in a zone in which property may be devoted to one-family dwellings, accessory buildings, and open-space uses, with density restrictions permitting appellants to build between one and five single-family residences on their tract. Without having sought approval for development of their tract under the ordinances, appellants brought suit against the city in state court, alleging that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments, and seeking, inter alia, a declaration that the zoning ordinances were facially unconstitutional. The city's demurrer claiming that the complaint failed to state a cause of action was sustained by the trial court, and the California Supreme Court affirmed.Held: The zoning ordinances on their face do not take appellants' property without just compensation. Pp. 260-263. (a) The ordinances substantially advance the legitimate governmental goal of discouraging premature and unnecessary conversion of open-space land to urban uses and are proper exercises of the city's police power to protect its residents from the ill effects of urbanization. Pp. 261-262. (b) Appellants will share with other owners the benefits and burdens of the city's exercise of such police power, and in assessing the fairness of the ordinances these benefits must be considered along with any diminution in market value that appellants might suffer. P. 262. (c) Although the ordinances limit development, they neither prevent the best use of appellants' land nor extinguish a fundamental attribute of ownership. Since at this juncture appellants are free to pursue their reasonable investment expectations by submitting a development plan to the city, it cannot be said that the impact of the ordinances has denied them the "justice and fairness" guaranteed by the Fifth and Fourteenth Amendments. Pp. 262-263. 24 Cal. 3d 266, 598 P.2d 25, affirmed.POWELL, J., delivered the opinion for a unanimous Court. Gideon Kanner argued the cause for appellants. With him on the briefs were John P. Pollock and Reginald G. Hearn.E. Clement Shute, Jr., argued the cause pro hac vice for appellee. With him on the brief were Robert I. Conn and Gary T. Ragghianti.* [Footnote *] Briefs of amici curiae urging reversal were filed by Robert A. Ferris for the California Forest Protective Association; by Les J. Weinstein and Aaron M. Peck for the Glendale Federal Savings and Loan Association; by Howard N. Ellman, Kenneth N. Burns, and Michael J. Burke for Half Moon Bay Properties, Inc.; by Gus Bauman for the National Association of Home Builders et al.; by Ronald A. Zumbrun and Thomas E. Hookano for the Pacific Legal Foundation; and, pro se, by Burton J. Goldstein, M. Reed Hunter, Jess S. Jackson, Jr., Jerrold A. Fadem, Michael M. Berger, Roger M. Sullivan, Richard F. Desmond, Stephen J. Wagner, Gerald B. Hansen, and Alfred P. Chasuk for Mr. Goldstein et al.Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Elinor Hadley Stillman, and Jacques B. Gelin for the United States; by George Deukmejian, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Richard C. Jacobs, Deputy Attorney General, for the State of California; by the Attorneys General and other officials of their respective jurisdictions as follows: J. D. MacFarlane, Attorney General of Colorado; Richard S. Gebelein, Attorney General of Delaware, and Regina M. Small, State Solicitor; Jim Smith, Attorney General of Florida, and Richard Hixson, Assistant Attorney General; Wayne Minami, Attorney General of Hawaii; William J. Scott, Attorney General of Illinois, and George Wolff, Assistant Attorney General; William J. Guste, Jr., Attorney General of Louisiana, and Kendall Vick, Assistant Attorney General; Richard S. Cohen, Attorney General of Maine, and Cabanne Howard, Assistant Attorney General; Stephen H. Sachs, Attorney General of Maryland, and Paul F. Strain and Thomas A. Deming, Deputy Attorneys General; Francis X. Bellotti, Attorney General of Massachusetts, and Stephen M. Leonard, Assistant Attorney General; Robert Abrams, Attorney General of New York; William J. Brown, Attorney General of Ohio, and Colleen Nissl, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Peter S. Herman and Mary J. Deits, Deputy Attorneys General; M. Jerome Diamond, Attorney General of Vermont, and Bensen D. Scotch, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; and Bronson C. La Follette, Attorney General of Wisconsin, for the State of Colorado et al.; by John H. Larson and Paul T. Hanson for the County of Los Angeles; by Robert J. Logan and Jeffrey P. Widman for the City of San Jose et al.; by Daniel Riesel, Nicholas A. Robinson, Joel H. Sachs, Ross Sandler, and Philip Weinberg for the Committee on Environmental Law of the Association of the Bar of the City of New York; by David Bonderman for the Conservation Foundation et al.; and by Elliott E. Blinderman for the Federation of Hillside and Canyon Associations, Inc., et al.Briefs of amici curiae were filed by Timothy B. Flynn and A. Thomas Hunt for the American Planning Association et al.; by Frank Schnidman for the National Association of Manufacturers; and by Louis E. Goebel and Guenter S. Cohn for San Diego Gas & Electric Co. MR. JUSTICE POWELL delivered the opinion of the Court.The question in this case is whether municipal zoning ordinances took appellants' property without just compensation in violation of the Fifth and Fourteenth Amendments.IAfter the appellants acquired five acres of unimproved land in the city of Tiburon, Cal., for residential development, the city was required by state law to prepare a general plan governing both land use and the development of open-space land. Cal. Govt. Code Ann. 65302 (a) and (e) (West Supp. 1979); see 65563. In response, the city adopted two ordinances that modified existing zoning requirements. Tiburon, Cal., Ordinances Nos. 123 N. S. and 124 N. S. (June 28, 1973). The zoning ordinances placed the appellants' property in "RPD-1," a Residential Planned Development and Open Space Zone. RPD-1 property may be devoted to one-family dwellings, accessory buildings, and open-space uses. Density restrictions permit the appellants to build between one and five single-family residences on their 5-acre tract. The appellants never have sought approval for development of their land under the zoning ordinances.1 The appellants filed a two-part complaint against the city in State Superior Court. The first cause of action sought $2 million in damages for inverse condemnation.2 The second cause of action requested a declaration that the zoning ordinances were facially unconstitutional. The gravamen of both claims was the appellants' assertion that the city had taken their property without just compensation in violation of the Fifth and Fourteenth Amendments. The complaint alleged that land in Tiburon has greater value than any other suburban property in the State of California. App. 3. The ridge-lands that appellants own "possess magnificent views of San Francisco Bay and the scenic surrounding areas [and] have the highest market values of all lands" in Tiburon. Id., at 4. Rezoning of the land "forever prevented [its] development for residential use... ." Id., at 5. Therefore, the appellants contended, the city had "completely destroyed the value of [appellants'] property for any purpose or use whatsoever... ." Id., at 7.3 The city demurred, claiming that the complaint failed to state a cause of action. The Superior Court sustained the demurrer,4 and the California Supreme Court affirmed. 24 Cal. 3d 266, 598 P.2d 25 (1979). The State Supreme Court first considered the inverse condemnation claim. It held that a landowner who challenges the constitutionality of a zoning ordinance may not "sue in inverse condemnation and thereby transmute an excessive use of the police power into a lawful taking for which compensation in eminent domain must be paid." Id., at 273, 598 P.2d, at 28. The sole remedies for such a taking, the court concluded, are mandamus and declaratory judgment. Turning therefore to the appellants' claim for declaratory relief, the California Supreme Court held that the zoning ordinances had not deprived the appellants of their property without compensation in violation of the Fifth Amendment.5 We noted probable jurisdiction. . We now affirm the holding that the zoning ordinances on their face do not take the appellants' property without just compensation.6 IIThe Fifth Amendment guarantees that private property shall not "be taken for public use, without just compensation." The appellants' complaint framed the question as whether a zoning ordinance that prohibits all development of their land effects a taking under the Fifth and Fourteenth Amendments. The California Supreme Court rejected the appellants' characterization of the issue by holding, as a matter of state law, that the terms of the challenged ordinances allow the appellants to construct between one and five residences on their property. The court did not consider whether the zoning ordinances would be unconstitutional if applied to prevent appellants from building five homes. Because the appellants have not submitted a plan for development of their property as the ordinances permit, there is as yet no concrete controversy regarding the application of the specific zoning provisions. See Socialist Labor Party v. Gilligan, . See also Goldwater v. Carter, (POWELL, J., concurring). Thus, the only question properly before us is whether the mere enactment of the zoning ordinances constitutes a taking.The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, see Nectow v. Cambridge, , or denies an owner economically viable use of his land, see Penn Central Transp. Co. v. New York City, , n. 36 (1978). The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Although no precise rule determines when property has been taken, see Kaiser Aetna v. United States, , the question necessarily requires a weighing of private and public interests. The seminal decision in Euclid v. Ambler Co., , is illustrative. In that case, the landowner challenged the constitutionality of a municipal ordinance that restricted commercial development of his property. Despite alleged diminution in value of the owner's land, the Court held that the zoning laws were facially constitutional. They bore a substantial relationship to the public welfare, and their enactment inflicted no irreparable injury upon the landowner. Id., at 395-397.In this case, the zoning ordinances substantially advance legitimate governmental goals. The State of California has determined that the development of local open-space plans will discourage the "premature and unnecessary conversion of open-space land to urban uses." Cal. Govt. Code Ann. 65561 (b) (West. Supp. 1979).7 The specific zoning regulations at issue are exercises of the city's police power to protect the residents of Tiburon from the ill effects of urbanization.8 Such governmental purposes long have been recognized as legitimate. See Penn Central Transp. Co. v. New York City, supra, at 129; Village of Belle Terre v. Boraas, ; Euclid v. Ambler Co., supra, at 394-395.The ordinances place appellants' land in a zone limited to single-family dwellings, accessory buildings, and open-space uses. Construction is not permitted until the builder submits a plan compatible with "adjoining patterns of development and open space." Tiburon, Cal., Ordinance No. 123 N. S. 2 (F). In passing upon a plan, the city also will consider how well the proposed development would preserve the surrounding environment and whether the density of new construction will be offset by adjoining open spaces. Ibid. The zoning ordinances benefit the appellants as well as the public by serving the city's interest in assuring careful and orderly development of residential property with provision for open-space areas. There is no indication that the appellants' 5-acre tract is the only property affected by the ordinances. Appellants therefore will share with other owners the benefits and burdens of the city's exercise of its police power. In assessing the fairness of the zoning ordinances, these benefits must be considered along with any diminution in market value that the appellants might suffer.Although the ordinances limit development, they neither prevent the best use of appellants' land, see United States v. Causby, , and n. 7 (1946), nor extinguish a fundamental attribute of ownership, see Kaiser Aetna v. United States, supra, at 179-180. The appellants have alleged that they wish to develop the land for residential purposes, that the land is the most expensive suburban property in the State, and that the best possible use of the land is residential. App. 3-4. The California Supreme Court has decided, as a matter of state law, that appellants may be permitted to build as many as five houses on their five acres of prime residential property. At this juncture, the appellants are free to pursue their reasonable investment expectations by submitting a development plan to local officials. Thus, it cannot be said that the impact of general land-use regulations has denied appellants the "justice and fairness" guaranteed by the Fifth and Fourteenth Amendments. See Penn Central Transp. Co. v. New York City, 438 U.S., at 124.9 IIIThe State Supreme Court determined that the appellants could not recover damages for inverse condemnation even if the zoning ordinances constituted a taking. The court stated that only mandamus and declaratory judgment are remedies available to such a landowner. Because no taking has occurred, we need not consider whether a State may limit the remedies available to a person whose land has been taken without just compensation.The judgment of the Supreme Court of California is Affirmed. |
6 | Section 8(b)(4) of the National Labor Relations Act prohibits secondary boycotts, but its so-called "publicity proviso" exempts from the prohibition publicity advising the public that a product is produced by an employer with whom a union has a primary dispute and is distributed by another employer. As a result of a wage dispute between respondent union and a building contractor retained by a company to construct a department store in a shopping center owned and operated by petitioner, the union passed out handbills to consumers in the shopping center urging them not to patronize any of the stores in the center until petitioner publicly promised that all construction at the center would be done by contractors who pay their employees fair wages and fringe benefits. Petitioner filed an unfair labor practice charge with the National Labor Relations Board, which held that the handbilling was exempted from the secondary boycott prohibition of 8(b)(4) by the "publicity proviso" and dismissed the complaint. The Board reasoned that there was a "symbiotic" relationship between petitioner and its tenants, including the department store company, and that they would derive a substantial benefit from the "product" that the building contractor was constructing, namely, the new store, the contractor's status as a producer bringing a total consumer boycott of the shopping center within the "publicity proviso." The Court of Appeals agreed, holding that the building contractor was a producer and that petitioner and its tenants were distributors within the meaning of the proviso.Held: The handbilling does not come within the protection of the "publicity proviso." Pp. 153-157. (a) The only publicity exempted from the secondary boycott prohibition is publicity intended to inform the public that the primary employer's product is "distributed by" the secondary employer. Here, the Board's analysis would almost strip the distribution requirement of any limiting effect and diverts the inquiry away from the relationship between the primary and secondary employers and toward the relationship between the two secondary employers. It then tests that relationship by a standard so generous that it would be satisfied by virtually any secondary employer that a union might want consumers to boycott. Pp. 155-156. (b) The handbills at issue did not merely call for a boycott of the department store company's products; they also called for a boycott of the products being sold by the company's cotenants. Neither petitioner nor any of the cotenants had any business relationship with the building contractor nor do they sell any product whose chain of production can reasonably be said to include the contractor. Hence, there is no justification for treating the products that the cotenants distribute to the public as products produced by the contractor. Pp. 156-157. 662 F.2d 264, vacated and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Lawrence M. Cohen argued the cause for petitioner. With him on the briefs were W. Reynolds Allen and Mark E. Levitt.Norton J. Come argued the cause for respondents. With him on the brief for respondent National Labor Relations Board were Solicitor General Lee, Linda Sher, and Elinor Hadley Stillman. Richard H. Frank, Laurence J. Cohen, Laurence Gold, and George Kaufmann filed a brief for respondent Florida Gulf Coast Building Trades Council, AFL-CIO.* [Footnote *] Briefs of amici curiae urging reversal were filed by Stephen A. Bokat for the Chamber of Commerce of the United States; by Harry L. Browne for the American Retail Federation; by G. Brockwel Heylin for the Associated General Contractors of America, Inc.; and by Edward J. Sack for the International Council of Shopping Centers, Inc.JUSTICE STEVENS delivered the opinion of the court.As a result of a labor dispute between respondent union and the H. J. High Construction Company (High), the union passed out handbills urging consumers not to trade with a group of employers who had no business relationship of any kind with High. The question presented is whether that handbilling is exempted from the prohibition against secondary boycotts contained in 8(b)(4)1 of the National Labor Relations Act, as amended, 29 U.S.C. 158(b)(4), by what is known as the "publicity proviso" to that section.2 High is a general building contractor retained by the H. J. Wilson Company (Wilson) to construct a department store in a shopping center in Tampa, Fla. Petitioner, the Edward J. DeBartolo Corporation (DeBartolo), owns and operates the center. Most of the 85 tenants in the mall signed a standard lease with DeBartolo providing for a minimum rent (which increases whenever a large new department store opens for business) plus a percentage of gross sales, and requiring the tenant to pay a proportionate share of the costs of maintaining the mall's common areas, to pay dues to a merchants' association, and to take part in four joint advertising brochures. Wilson signed a slightly different land lease agreement, but it also promised to pay dues to the merchants' association and to share in the costs of maintaining the common areas. Under the terms of Wilson's lease, neither DeBartolo nor any of the other tenants had any right to control the manner in which High discharged its contractual obligation to Wilson.The union conducted its handbilling at all four entrances to the shopping center for about three weeks, while the new Wilson store was under construction. Without identifying High by name, the handbill stated that the contractors building Wilson's Department Store were paying substandard wages, and asked the readers not to patronize any of the stores in the mall until DeBartolo publicly promised that all construction at the mall would be done by contractors who pay their employees fair wages and fringe benefits.3 The handbilling was conducted in an orderly manner, and was not accompanied by any picketing or patrolling. DeBartolo advised the union that it would not oppose this handbilling if the union modified its message to make clear that the dispute did not involve DeBartolo or any of Wilson's cotenants, and if it limited its activities to the immediate vicinity of Wilson's. When the union persisted in distributing handbills to all patrons of the shopping center, DeBartolo filed a trespass action in the state court and an unfair labor practice charge with the National Labor Relations Board. The Board's General Counsel issued a complaint.The complaint recited the dispute between the union and High, and noted the absence of any labor dispute between the union and DeBartolo, Wilson, or any of the other tenants of the East Lake Mall. The complaint then alleged that in furtherance of its primary dispute with High, the union "has threatened, coerced or restrained, and is threatening, coercing or restraining, various tenant Employers who are engaged in business at East Lake Square Mall, and who lease space from DeBartolo in East Lake Square Mall, by handbilling the general public not to do business with the above-described tenant Employers ... ." Complaint § 8(a). The complaint alleged that the object of the handbilling "was and is, to force or require the aforesaid tenant Employers in East Lake Square Mall ... to cease using, handling, transporting, or otherwise dealing in products and/or services of, and to cease doing business with DeBartolo, in order to force DeBartolo and/or Wilson's not to do business with High." Complaint § 8(b).After the union filed its answer, the parties stipulated to the relevant facts and submitted the matter to the Board for decision. Without deciding whether the handbilling constituted a form of "coercion" or "restraint" proscribed by 8(b)(4), the Board concluded that it was exempted from the Act by the "publicity proviso" and dismissed the complaint. Florida Gulf Coast Building Trades Council, AFL-CIO (Edward J. DeBartolo Corp.), 252 N. L. R. B. 702 (1980). The Board reasoned that there was a "symbiotic" relationship between DeBartolo and its tenants, including Wilson, and that they all would derive a substantial benefit from the "product" that High was constructing, namely Wilson's new store. The Board did not expressly state that DeBartolo and the other tenants could be said to be distributors of that product, but concluded that High's status as a producer brought a total consumer boycott of the shopping center within the publicity proviso.4 The Court of Appeals agreed. 662 F.2d 264 (CA4 1981). It observed that our decision in NLRB v. Servette, Inc., , had rejected a narrow reading of the proviso and that the Board had consistently construed it in an expansive manner. Finding the Board's interpretation consistent with the rationale of the National Labor Relations Act, it held that High was a producer and that DeBartolo and the other tenants were distributors within the meaning of the proviso. This holding reflected the court's belief that in response to the union's consumer handbilling, DeBartolo and the storekeepers would be able "in turn, to apply pressure on Wilson's and High." 662 F.2d, at 271. Because the decision conflicts with that of the Court of Appeals for the Eighth Circuit in Pet, Inc. v. NLRB, 641 F.2d 545 (1981), we granted certiorari. .5 The Board and the union correctly point out that DeBartolo cannot obtain relief in this proceeding unless it prevails on three separate issues. It must prove that the union did "threaten, coerce, or restrain" a person engaged in commerce, with the object of "forcing or requiring" someone to cease doing business with someone else - that is to say, it must prove a violation of 8(b)(4)(ii)(B). It must also overcome both the union's defense based on the publicity proviso and the union's claim that its conduct was protected by the First Amendment. Neither the Board nor the Court of Appeals considered whether the handbilling in this case was covered by 8(b)(4)(ii)(B) or protected by the First Amendment, because both found that it fell within the proviso. We therefore limit our attention to that issue.The publicity proviso applies to communications "other than picketing," that are "truthful," and that do not produce either an interference with deliveries or a work stoppage by employees of any person other than the firm engaged in the primary labor dispute. The Board and the Court of Appeals found that these three conditions were met, and these findings are not now challenged. The only question is whether the handbilling "advis[ed] the public ... that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer." The parties agree that this language limits the proviso's protection to publicity that is designed to create consumer pressure on secondary employers who distribute the primary employer's products. They do not agree, however, on what constitutes a producer-distributor relationship.We have analyzed the producer-distributor requirement in only one case, NLRB v. Servette, Inc., supra. Servette involved a primary dispute between a union and a wholesale distributor of candy and certain other specialty items sold to the public by supermarkets. The union passed out handbills in front of some of the chainstores urging consumers not to buy any products purchased by the store from Servette. We held that even though Servette did not actually manufacture the items that it distributed, it should still be regarded as a "producer" within the meaning of the proviso. We thus concluded that the handbills advised the public that the products were produced by an employer with whom the union had a primary dispute (Servette) and were being distributed by another employer (the supermarket).In reaching that conclusion, we looked to the legislative history of the Labor-Management Reporting and Disclosure Act of 1959, Pub. L. 86-257, 73 Stat. 519, which had simultaneously strengthened the secondary boycott prohibition and added the publicity proviso. We noted that a principal source of congressional concern had been the secondary boycott activities of the Teamsters Union, which for the most part represented employees of motor carriers who did not "produce" goods in the technical sense of the verb. The Teamsters' activities were plainly intended to be covered by the new prohibitions in 8(b)(4)(ii)(B), and we declined to hold that Congress, in using the word "produced," had intended to exclude the Teamsters entirely from the offsetting protections of the proviso. "There is nothing in the legislative history which suggests that the protection of the proviso was intended to be any narrower in coverage than the prohibition to which it is an exception, and we see no basis for attributing such an incongruous purpose to Congress." 377 U.S., at 55.The focus of the analysis in Servette was on the meaning of the term "producer." In this case, DeBartolo is willing to concede that Wilson distributes products that are "produced" by High within the meaning of the statute. This would mean that construction workers, like truckdrivers, may perform services that are essential to the production and distribution of consumer goods. We may therefore assume in this case that High, the primary employer, is a producer within the meaning of the proviso.6 Indeed, we may assume here that the proviso's "coverage" - the types of primary disputes it allows to be publicized - is broad enough to include almost any primary dispute that might result in prohibited secondary activity.7 We reject, however, the Board's interpretation of the extent of the secondary activity that the proviso permits. The only publicity exempted from the prohibition is publicity intended to inform the public that the primary employer's product is "distributed by" the secondary employer. We are persuaded that Congress included that requirement to reflect the concern that motivates all of 8(b)(4): "shielding unoffending employers and others from pressures in controversies not their own." NLRB v. Denver Building & Construction Trades Council, .8 In this case, the Board did not find that any product produced by High was being distributed by DeBartolo or any of Wilson's cotenants. Instead, it relied on the theory that there was a symbiotic relationship between them and Wilson, and that DeBartolo and Wilson's cotenants would derive substantial benefit from High's work. That form of analysis would almost strip the distribution requirement of its limiting effect. It diverts the inquiry away from the relationship between the primary and secondary employers and toward the relationship between two secondary employers. It then tests that relationship by a standard so generous that it will be satisfied by virtually any secondary employer that a union might want consumers to boycott. Yet if Congress had intended all peaceful, truthful handbilling that informs the public of a primary dispute to fall within the proviso, the statute would not have contained a distribution requirement.9 In this case, DeBartolo is willing to assume that Wilson distributes products that are "produced" by High within the meaning of the statute. Wilson contracted with High to receive the construction services that are the subject of the primary dispute, and the cost of those services will presumably be reflected in the prices of the products sold by Wilson. But the handbills at issue in this case did not merely call for a boycott of Wilson's products; they also called for a boycott of the products being sold by Wilson's cotenants. Neither DeBartolo nor any of the cotenants has any business relationship with High. Nor do they sell any products whose chain of production can reasonably be said to include High. Since there is no justification for treating the products that the cotenants distribute to the public as products produced by High, the Board erred in concluding that the handbills came within the protection of the publicity proviso.Stressing the fact that this case arises out of an entirely peaceful and orderly distribution of a written message, rather than picketing, the union argues that its handbilling is a form of speech protected by the First Amendment. The Board, without completely endorsing the union's constitutional argument, contends that it has sufficient force to invoke the Court's prudential policy of construing Acts of Congress so as to avoid the unnecessary decision of serious constitutional questions. See NLRB v. Catholic Bishop of Chicago, . That doctrine, however, serves only to authorize the construction of a statute in a manner that is "fairly possible." Crowell v. Benson, . We do not believe that the Board's expansive reading of the proviso meets that standard.10 Nevertheless, we do not reach the constitutional issue in this case. For, as we noted at the outset, the Board has not yet decided whether the handbilling in this case was proscribed by the Act. It rested its decision entirely on the publicity proviso and never considered whether, apart from that proviso, the union's conduct fell within the terms of 8(b)(4)(ii)(B).11 Until the statutory question is decided, review of the constitutional issue is premature.The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
7 | Section 4 (c) (8) of the Bank Holding Company Act authorizes the Federal Reserve Board (Board) to allow bank holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto." In 1972, the Board amended its Regulation Y, and issued an interpretive ruling in connection therewith, enlarging the category of activities that it would regard as "closely related to banking" under 4 (c) (8) by permitting bank holding companies and their nonbanking subsidiaries to act as an investment adviser to a closed-end investment company. Section 16 of the Banking Act of 1933 (Glass-Steagall Act) prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account, and 21 of that Act prohibits any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities from engaging in banking. Respondent trade association of open-end investment companies, in proceedings before the Board and on direct review in the Court of Appeals, challenged, on the basis of the Glass-Steagall Act, the Board's authority to determine that investment adviser services are "closely related" to banking. While rejecting respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, the Court of Appeals nevertheless held that 4 (c) (8) of the Bank Holding Company Act did not authorize the regulation because the activities that it permitted were not consistent with the congressional intent in both of these Acts to effect as complete a separation as possible between the securities and commercial banking businesses.Held: The amendment to Regulation Y does not exceed the Board's statutory authority. Pp. 55-78. (a) The Board's determination that services performed by an investment adviser for a closed-end investment company are "so closely related to banking ... as to be a proper incident thereto" is supported not only by the normal practice of banks in performing fiduciary functions in various capacities but also by a normal reading of the language of 4 (c) (8). And the Board's determination of what activities are "closely related" to banking is entitled to the greatest deference. Pp. 55-58. (b) Investment adviser services by a bank do not necessarily violate either 16 or 21 of the Glass-Steagall Act. The Board's interpretive ruling here prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of, or from purchasing, securities of any investment company for which it acts as an investment adviser. Thus, if such restrictions are followed, investment advisory services - even if performed by a bank - would not violate 16's requirements. And the management of a customer's investment portfolio is not the kind of selling activity contemplated in the prohibition in 21, which was intended to require securities firms, such as underwriters or brokerage houses, to sever their banking connections. In any event, even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under 4 (c) (8). Pp. 58-64. (c) Since the interpretive ruling issued with the amendment to Regulation Y prohibits a bank holding company acting as an investment adviser from issuing, underwriting, selling, or redeeming securities, Regulation Y, as amended, avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. Cf. Investment Company Institute v. Camp, . Pp. 64-68. (d) Regulation Y, as amended, is consistent with the legislative history of both the Bank Holding Company Act and the Glass-Steagall Act. More specifically, such legislative history indicates that Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act. Pp. 68-78. App. D.C. 97, 606 F.2d 1004, reversed.STEVENS, J., delivered the opinion of the Court, in which all other Members joined, except STEWART and REHNQUIST, JJ., who took no part in the consideration or decision of the case, and POWELL, J., who took no part in the decision of the case.Stephen M. Shapiro argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Daniel, Anthony J. Steinmeyer, and Neal L. Petersen. G. Duane Vieth argued the cause for respondent. With him on the briefs was Leonard H. Becker.* [Footnote *] William H. Smith, Keith A. Jones, Alan B. Levenson, Daniel F. Kolb, Geoffrey S. Stewart, Arnold M. Lerman, Michael L. Burack, and Edward T. Hand filed a brief for the American Bankers Association et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed by Roger A. Clark, John M. Liftin, and Donald J. Crawford for the Securities Industry Association; and by Harvey L. Pitt, James H. Schropp, and Randy A. Harris for A. G. Becker Inc.JUSTICE STEVENS delivered the opinion of the Court.In 1956 Congress enacted the Bank Holding Company Act to control the future expansion of bank holding companies and to require divestment of their nonbanking interests.1 The Act, however, authorizes the Federal Reserve Board (Board) to allow holding companies to acquire or retain ownership in companies whose activities are "so closely related to banking or managing or controlling banks as to be a proper incident thereto."2 In 1972 the Board amended its regulations to enlarge the category of activities that it would regard as "closely related to banking" and therefore permissible for bank holding companies and their nonbanking subsidiaries. Specifically, the Board determined that the services of an investment adviser to a closed-end investment company may be such a permissible activity. The question presented by this case is whether the Board had the statutory authority to make that determination.The Board's determination, which was implemented by an amendment to its "Regulation Y," permits bank holding companies and their nonbanking subsidiaries to act as an investment adviser as that term is defined by the Investment Company Act of 1940.3 Although the statutory definition is a detailed one,4 the typical relationship between an investment adviser and an investment company can be briefly described. Investment companies, by pooling the resources of small investors under the guidance of one manager, provide those investors with diversification and expert management.5 Investment advisers generally organize and manage investment companies pursuant to a contractual arrangement with the company.6 In return for a management fee, the adviser selects the company's investment portfolio and supervises most aspects of its business.7 The Board issued an interpretive ruling in connection with its amendment to Regulation Y. That ruling distinguished "open-end" investment companies (commonly referred to as "mutual funds") from "closed-end" investment companies. The ruling explained that "a mutual fund is an investment company, which, typically, is continuously engaged in the issuance of its shares and stands ready at any time to redeem the securities as to which it is the issuer; a closed-end investment company typically does not issue shares after its initial organization except at infrequent intervals and does not stand ready to redeem its shares."8 Because open-end investment companies will redeem their shares, they must constantly issue securities to prevent shrinkage of assets.9 In contrast, the capital structure of a closed-end company is similar to that of other corporations; if its shareholders wish to sell, they must do so in the marketplace. Without any obligation to redeem, closed-end companies need not continuously seek new capital.10 The Board's interpretive ruling expressed the opinion that a bank holding company may not lawfully sponsor, organize, or control an open-end investment company.11 but the Board perceived no objection to sponsorship of a closed-end investment company provided that certain restrictions are observed.12 Among those restrictions is a requirement that the investment company may not primarily or frequently engage in the issuance, sale, and distribution of securities; a requirement that the investment adviser may not have any ownership interest in the investment company, or extend credit to it; and a requirement that the adviser may not underwrite or otherwise participate in the sale or distribution of the investment company's securities.13 Respondent Investment Company Institute, a trade association of open-end investment companies, commenced this litigation challenging as in excess of the Board's statutory authority the determination that investment adviser services are "closely related" to banking. Both in proceedings before the Board and in a direct review proceeding in the United States Court of Appeals for the District of Columbia Circuit, respondent based this challenge on the Banking Act of 1933, commonly known as the Glass-Steagall Act, in which Congress placed restrictions on the securities-related business of banks in order to protect their depositors.14 The Court of Appeals rejected respondent's argument that Regulation Y, as amended, violated the Glass-Steagall Act, relying on the fact that the prohibitions of 16 and 21 of that Act15 apply only to banks rather than to bank holding companies or their nonbanking subsidiaries. App. D.C. 97, 606 F.2d 1004. The court nevertheless concluded that 4 (c) (8) of the Bank Holding Company Act did not authorize the regulation. The court reasoned that the legislative history of the Act demonstrates that Congress did not intend the Bank Holding Company Act to restrict the scope of the Glass-Steagall Act. Because the court read the legislative history to indicate that Congress perceived the Glass-Steagall Act as an effort to effect as complete a separation as possible between the securities business and the commercial banking business, the court read a similar intent into the Bank Holding Company Act. The Court of Appeals believed that activities permitted by the challenged regulation were not consistent with the congressional intent to effect this separation.We granted certiorari because of the importance of the Court of Appeals holding. . We are persuaded that the language of both the Bank Holding Company Act and the Glass-Steagall Act, as well as our interpretation of the Glass-Steagall Act in Investment Company Institute v. Camp, , supports the Board. Moreover, contrary to the view of the Court of Appeals, we are persuaded that the regulation is consistent with the legislative history of both statutes.IThe services of an investment adviser are not significantly different from the traditional fiduciary functions of banks. The principal activity of an investment adviser is to manage the investment portfolio of its advise - to invest and reinvest the funds of the client. Banks have engaged in that sort of activity for decades.16 As executor, trustee, or managing agent of funds committed to its custody, a bank regularly buys and sells securities for its customers. Bank trust departments manage employee benefits trusts, institutional and corporate agency accounts, and personal trust and agency accounts.17 Moreover, for over 50 years banks have performed these tasks for trust funds consisting of commingled funds of customers.18 These common trust funds administered by banks would be regulated as investment companies by the Investment Company Act of 1940 were they not exempted from the Act's coverage.19 The Board's conclusion that the services performed by an investment adviser are "so closely related to banking ... as to be a proper incident thereto" is therefore supported by banking practice and by a normal reading of the language of 4 (c) (8).20 The Board's determination of what activities are "closely related" to banking is entitled to the greatest deference.21 Such deference is particularly appropriate in this case because the regulation under attack is merely a general determination that investment advisory services which otherwise satisfy the restrictions imposed by the Board's interpretive ruling constitute an activity that is so closely related to banking as to be a proper incident thereto.22 Because the authority for any specific investment advisory relationship must be preceded by a further determination by the Board that the relationship can be expected to provide benefits for the public, the Board will have the opportunity to ensure that no bank holding company exceeds the bounds of a bank's traditional fiduciary function of managing customers' accounts.23 Thus unless the Glass-Steagall Act requires a contrary conclusion, the Board's interpretation of the plain language of the Bank Company Holding Act must be upheld.IIRespondent's principal attack on the Board's general determination that investment adviser services are so closely related as to be a proper incident to banking proceeds from the premise that if such services were performed by a bank, the bank would violate 16 and 21 of the Glass-Steagall Act.24 Respondent therefore argues that such services may never be regarded as a "proper incident" that could be performed by a bank affiliate.25 We reject both the premise and the conclusion of this argument. The performance of investment advisory services by a bank would not necessarily violate 16 or 21 of the Glass-Steagall Act. Moreover, bank affiliates may be authorized to engage in certain activities that are prohibited to banks themselves.26 It is familiar history that the Glass-Steagall Act was enacted in 1933 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression.27 Congress was persuaded that speculative activities, partially attributable to the connection between commercial banking and investment banking, had contributed to the rash of bank failures.28 The legislative history reveals that securities firms affiliated with banks had engaged in perilous underwriting operations, stock speculation, and maintaining a market for the bank's own stock, often with the bank's resources.29 Congress sought to separate national banks, as completely as possible, from affiliates engaged in such activities.30 Sections 16 and 21 of the Glass-Steagall Act approach the legislative goal of separating the securities business from the banking business from different directions. The former places a limit on the power of a bank to engage in securities transactions; the latter prohibits a securities firm from engaging in the banking business. Section 16 expressly prohibits a bank from "underwriting" any issue of a security or purchasing any security for its own account. The Board's interpretive ruling here expressly prohibits a bank holding company or its subsidiaries from participating in the "sale or distribution" of securities of any investment company for which it acts as investment adviser. 12 CFR 225.125 (h) (1980). The ruling also prohibits bank holding companies and their subsidiaries from purchasing securities of the investment company for which it acts as investment adviser. 225.125 (g).31 Therefore, if the restrictions imposed by the Board's interpretive ruling are followed, investment advisory services - even if performed by a bank - would not violate the requirements of 16.We are also satisfied that a bank's performance of such services would not necessarily violate 21. In contrast to 16, 21 prohibits certain kinds of securities firms from engaging in banking. The 21 prohibition applies to any organization "engaged in the business of issuing, underwriting, selling, or distributing" securities. Such a securities firm may not engage at the same time "to any extent whatever in the business of receiving deposits." The management of a customer's investment portfolio - even when the manager has the power to sell securities owned by the customer - is not the kind of selling activity that Congress contemplated when it enacted 21. If it were, the statute would prohibit banks from continuing to manage investment accounts in a fiduciary capacity or as an agent for an individual. We do not believe Congress intended that such a reading be given 21.32 Rather, 21 presented the converse situation of 16 and was intended to require securities firms such as underwriters or brokerage houses to sever their banking connections. It surely was not intended to require banks to abandon an accepted banking practice that was subjected to regulation under 16.33 Even if we were to assume that a bank would violate the Glass-Steagall Act by engaging in certain investment advisory services, it would not follow that a bank holding company could never perform such services. In both the Glass-Steagall Act itself and in the Bank Holding Company Act, Congress indicated that a bank affiliate may engage in activities that would be impressible for the bank itself. Thus, 21 of Glass-Steagall entirely prohibits the same firm from engaging in banking and in the underwriting business, whereas 20 does not prohibit bank affiliation with a securities firm unless that firm is "engaged principally" in activities such as underwriting.34 Further, 4 (c) (7) of the Bank Holding Company Act, which authorizes holding companies to purchase and own shares of investment companies, permits investment activity by a holding company that is impermissible for a bank itself.35 Finally, inasmuch as the Bank Holding Company Act requires divestment only of nonbanking interests, the 4 (c) (8) exception would be unnecessary if it applied only to services that a bank could legally perform. Thus even if the Glass-Steagall Act did prohibit banks from acting as investment advisers, that prohibition would not necessarily preclude the Board from determining that such adviser services would be permissible under 4 (c) (8).In all events, because all that is presently at issue is the Board's preliminary authorization of such services, rather than approval of any specific advisory relationship, speculation about possible conflicts with the Glass-Steagall Act is plainly not a sufficient basis for totally rejecting the Board's carefully considered determination.IIIOur conclusions with respect to the Glass-Steagall Act are in no way altered by consideration of our decision in Investment Company Institute v. Camp, . The Court there held that a regulation issued by the Comptroller of the Currency purporting to authorize banks to operate mutual funds violated 16 and 21 of the Glass-Steagall Act. The mutual fund under review in that case was the functional equivalent of an open-end investment company.36 Because the authorization at issue in this case is expressly limited to closed-end investment companies, the holding in Camp is clearly not dispositive. Respondent argues, however, that both the Court's reasoning in Camp and its description of the "more subtle hazards" created by the performance of investment advisory services by a bank are inconsistent with the Board's action. We disagree.In Camp the Court relied squarely on the literal language of 16 and 21 of the Glass-Steagall Act. After noting that 16 prohibited the underwriting by a national bank of any issue of securities and the purchase for its own account of shares of stock of any corporation, and that 21 prohibited corporations from both receiving deposits and engaging in issuing, underwriting, selling, or distributing securities, the Court recognized that the statutory language plainly applied to a bank's sale of redeemable and transferable "units of participation" in a common investment fund operated by the bank. 401 U.S., at 634. Because the Court held that the bank was the underwriter of the fund's units of participation within the meaning of the Investment Company Act of 1940, id., at 622-623, the Comptroller attempted to avoid the reach of 16 by arguing that the units of participation were not "securities" within the meaning of the Glass-Steagall Act. The Court's contrary determination led inexorably to the conclusion that 16 had been violated.This case presents an entirely different issue. No one could dispute the fact that the shares in a closed-end investment company are securities. But as we have indicated, such securities are not issued, sold, or underwritten by the investment adviser. In contrast to the bank's activities in issuing, underwriting, selling, and redeeming the units of participation in the Camp case, in this case the Board's interpretive ruling expressly prohibits such activity.37 The Court in Camp recognized that in enacting the Glass-Steagall Act, Congress contemplated other hazards in addition to the danger of banks using bank assets in imprudent securities investments.38 But none of these "more subtle hazards" would be present were a bank to act as an investment adviser to a closed-end investment company subject to the restrictions imposed by the Board. Those restrictions would prevent the bank from extending credit to the investment company and would also preclude the promotional pressures that are inherent in the investment banking business.39 In addition to the fact that the bank could not underwrite or sell the stock of the closed-end investment company, that company, unlike a mutual fund, would not be constantly involved in the search for new capital to cover the redemption of other stock. The advisory fee earned by the bank would provide little incentive to the bank or its holding company to engage in promotional activities.40 Our obligation to accord deference to the Board's interpretive ruling provides added support to our conclusion that the Board's regulation avoids the potential hazards involved in any association between a bank affiliate and a closed-end investment company. In Camp the Court emphasized that the Comptroller of the Currency had provided no guidance as to the effect of the Glass-Steagall Act on the proposed activity.41 Whereas in Camp the Court was deprived of administrative "expertise that can enlighten and rationalize the search for the meaning and intent of Congress," 401 U.S., at 628, in this case the regulatory action by the Board recognized and addressed the concerns that led to the enactment of the Glass-Steagall Act. Contrary to respondent's argument, the Camp decision therefore affirmatively supports the Board's action in this case.IVThe Court of Appeals rested its conclusion that the Board had exceeded its statutory authority on a review of the legislative history of 4 (c) (8). As originally enacted in 1956 the section referred to activities "closely related to the business of banking." In 1970, when the Act was amended to extend its coverage to holding companies controlling just one bank, the words "business of" were deleted from 4 (c) (8), thereby making the section refer merely to activities "closely related to banking." The conclusion of the Court of Appeals did not, however, place special reliance on this modest change. Rather, the Court of Appeals was persuaded that in 1956 Congress believed that the Glass-Steagall Act had been enacted in 1933 to "divorc[e] investment from commercial banking' and that the 1970 amendment to 4 (c) (8) did not alter the intent expressed by the 1956 Congress. App. D.C., at 110, 606 F.2d, at 1017.Congress did intend the Bank Holding Company Act to maintain and even to strengthen Glass-Steagall's restrictions on the relationship between commercial and investment banking. Part of the motivation underlying the requirement that bank holding companies divest themselves of nonbanking interests was the desire to provide a measure of regulation missing from the Glass-Steagall Act.42 In 1956, the only provision of the Glass-Steagall Act which regulated bank holding companies was 19 (e) of the Act, which provided that a bank holding company could not obtain a permit from the Federal Reserve Board entitling it to vote the shares of a bank subsidiary unless it agreed to divest itself within five years of any interest in a company formed for the purpose of, or "engaged principally" in, the issuance or underwriting of securities.43 This provision was largely ineffectual, because bank holding companies were not subject to the divestiture requirement as long as they did not vote their bank subsidiary shares.44 Thus bank holding companies were able to avoid Glass-Steagall's general purpose of separating as completely as possible commercial from investment banking in a way not available to other bank affiliates or banks themselves. The inadequacy of 19 (e) therefore lay not in the type of affiliation with securities-related firms permitted to bank holding companies but in the ability of holding companies to avoid any restrictions on affiliation by simply not voting their shares. To the extent that Congress strengthened the Glass-Steagall Act, it did so by closing this loophole rather than by imposing further restrictions on the permissible securities-related business of bank affiliates.45 The clear evidence of a congressional purpose in 1956 to remedy the inadequacy of 19 (e) of the 1933 Act does not support the conclusion that Congress also intended 4 (c) (8) to be read as totally prohibiting bank holding companies from being "engaged" in any securities-related activities; on the contrary it is more accurately read as merely completing the job of severing the connection between bank holding companies and affiliates "principally engaged" in the securities business.46 To invalidate the Board's regulation, the Court of Appeals had to assume that the activity of managing investments for a customer had been regarded by Congress as an aspect of investment banking rather than an aspect of commercial banking. But the Congress that enacted the Glass-Steagall Act did not take such an expansive view of investment banking.47 Investment advisers and closed-end investment companies are not "principally engaged" in the issuance or the underwriting of securities within the meaning of the Glass-Steagall Act, even if they are so engaged within the meaning of 16 and 21.48 Nothing in the legislative history of the Bank Holding Company Act persuades us that Congress in 1956 intended to effect a more complete separation between commercial and investment banking than the separation that the Glass-Steagall Act had achieved with respect to banks in 16 and 21 and had sought unsuccessfully to achieve with respect to bank holding companies in 19 (e).49 A review of the 1970 Amendments to the Bank Holding Company Act only strengthens this conclusion.50 On its face the 1970 amendment to 4 (c) (8) would appear to have broadened the Board's authority to determine when an activity is sufficiently related to banking to be permissible for a nonbanking subsidiary of a bank holding company.51 The initial versions of both the House and the Senate bills changed the "closely related" test of 4 (c) (8) to a "functionally related" test.52 The Conference Committee's final version of the bill, however, retained the "closely related" language of the 1956 Act.53 Whether this indicated that 4 (c) (8) was to have the same scope as it did under the 1956 Act is difficult to discern.54 For purposes of this case, however, we need not reconcile the conflicting views as to whether the 1970 amendment expanded the scope of 4 (c) (8), because no one disputes that the Board's discretion is at least as broad under the 1970 Amendments as it was under the 1956 Act. Therefore, our conclusion that nothing in the 1956 Act or its legislative history indicates that Congress intended to prohibit bank holding companies from acting as investment advisers to closed-end investment companies should also apply to the 1970 Amendments unless Congress specifically indicated that such services should not be authorized by the Board. Not only is there no such specific evidence, there is affirmative evidence to the contrary.The legislative history of the 1970 Amendments indicates that Congress did not intend the 1970 Amendments to have any effect on the prohibitions of the Glass-Steagall Act. The Senate chairman of the Conference Committee assured his fellow Senators that the conference bill was intended neither to enlarge nor to restrict the prohibitions contained in the Glass-Steagall Act.55 Moreover, the Senate Report refers to investment services but declines to state that the Board could not approve under 4 (c) (8) "bank sponsored mutual funds."56 The House's version of the bill rigidly confined the Board's discretion in certain areas by including a "laundry list" of activities which the Board could not approve. Included in this list was a prohibition of bank holding company acquisition of shares of any company engaged in "the issue, flotation, underwriting, public sale, or distribution," of securities, "whether or not any such interests are redeemable."57 The Conference Committee deleted this list. This deletion indicates a rejection of the House's restrictive approach in favor of the Senate's more flexible attitude toward the Board's exercise of its discretion.58 Thus as we read the legislative history of the 1970 Amendments, Congress did not intend the Bank Holding Company Act to limit the Board's discretion to approve securities-related activity as closely related to banking beyond the prohibitions already contained in the Glass-Steagall Act.59 This case is therefore one that is best resolved by deferring to the Board's expertise in determining what activities are encompassed within the plain language of the statute.Because we have concluded that the Board's decision to permit bank holding companies to act as investment advisers for closed-end investment companies is consistent with the language of the Bank Holding Company Act, and because such services are not prohibited by the Glass-Steagall Act, we hold that the amendment to Regulation Y does not exceed the Board's statutory authority. The judgment of the Court of Appeals is Reversed. JUSTICE STEWART and JUSTICE REHNQUIST took no part in the consideration or decision of this case. JUSTICE POWELL took no part in the decision of this case. |
0 | Confession given to investigating officer by petitioner, a prisoner, after petitioner was held two weeks under barbaric conditions in "sweatbox" punishment cell held involuntary and its use to convict him of prison rioting unconstitutional. Certiorari granted; reversed.Earl Faircloth, Attorney General of Florida, and Wallace E. Allbritton, Assistant Attorney General, for respondent.PER CURIAM.Petitioner, Bennie Brooks, was convicted of participating in a riot in the Florida prison where he was an inmate and was sentenced to a term of nine years and eight months to run consecutively with the sentence he was already serving. His conviction was affirmed without opinion by the Florida District Court of Appeal, First District, and his petition for writ of certiorari filed in the Florida Supreme Court was dismissed, also without opinion.The disturbance in the prison occurred on May 27, 1965. The same day Brooks was ordered confined in a punishment cell for 35 days with two other prisoners also accused of the rioting. Brooks says the cell was 7 feet long and 6 1/2 feet wide; a witness for the State testified it was 6 feet longer. This minor difference aside, the parties agree that the punishment cell had no external window, that it contained no bed or other furnishings or facilities except a hole flush with the floor which served as a commode, and that during the first 14 days he lived in this cell Brooks' only contact with the outside was an unspecified number of interviews with the prison's investigating officer. It is also agreed that while so confined Brooks was fed a "restricted diet" consisting, according to the testimony of the investigating officer, of "peas and carrots in a soup form" three times daily. Brooks' more detailed description of this concoction - "they fed us four ounces of soup three times a day and eight ounces of water" - was not controverted, nor was his testimony that he was stripped naked before being thrown into the cell. On the 15th day of confinement under these conditions, Brooks was taken from the punishment cell and again brought directly to the investigating officer. This time, shortly after questioning began, Brooks confessed and dictated his statement into a tape recorder. The recording was introduced at trial. Brooks says that he was brutally beaten by one officer while the other was taking his statement. However, we do not consider this claim because the officer denied it and the judge disbelieved Brooks' testimony. The judge also concluded that the confession was voluntary. We disagree.Putting to one side quibbles over the dimensions of the windowless sweatbox into which Brooks was thrown naked with two other men, we cannot accept his statement as the voluntary expression of an uncoerced will. For two weeks this man's home was a barren cage fitted only with a hole in one corner into which he and his cell mates could defecate. For two weeks he subsisted on a daily fare of 12 ounces of thin soup and eight ounces of water. For two full weeks he saw not one friendly face from outside the prison, but was completely under the control and domination of his jailers. These stark facts belie any contention that the confession extracted from him within minutes after he was brought from the cell was not tainted by the 14 days he spent in such an oppressive hole. In a long line of cases beginning with Brown v. Mississippi, , and reaffirmed last Term in Clewis v. Texas, , we have held that the Constitution does not permit prosecutorial use of an involuntary confession. We have also asserted repeatedly that, in adjudicating the question of voluntariness, "we cannot escape the responsibility of making our own examination of the record." Spano v. New York, . See Haynes v. Washington, ; Chambers v. Florida, . The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court. Accordingly, we reverse the judgment below.* The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Florida District Court of Appeal, First District, must be and hereby is Reversed.MR. JUSTICE BLACK concurs in the result.[Footnote *] Because we hold that the use at trial of the involuntary confession requires reversal of petitioner's conviction, we find it unnecessary to reach other issues raised by him. Thus, we express no views on petitioner's contentions that (1) he was denied a fair trial because the residents of the rural county where venue was set were hostile toward inmates of the prison and (2) he was denied the effective assistance of counsel because his appointed attorney was forced to trial without an opportunity to prepare to represent petitioner and the 12 codefendants tried with him. |
7 | After an unsuccessful Department of Agriculture proceeding to revoke or suspend the registration of respondent's commodity futures commission company, respondent filed an action for damages in District Court against petitioner officials (including the Secretary and Assistant Secretary of Agriculture, the Judicial Officer, the Chief Hearing Examiner who had recommended sustaining the administrative complaint, and the Department attorney who had prosecuted the enforcement proceeding), alleging, inter alia, that by instituting unauthorized proceedings against him they had violated various of his constitutional rights. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Held: 1. Neither Barr v. Matteo, , nor Spalding v. Vilas, , supports petitioners' contention that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent's constitutional rights and even if the violation was knowing and deliberate. Nor did either of those cases purport to abolish the liability of federal officers for actions manifestly beyond their line of duty; if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability. Pp. 485-496. 2. Without congressional directions to the contrary, it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 42 U.S.C. 1983, Scheuer v. Rhodes, , and suits brought directly under the Constitution against federal officials, Bivens v. Six Unknown Fed. Narcotics Agents, . Federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers. Pp. 496-504. 3. In a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer v. Rhodes, supra, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business. While federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law, there is no substantial basis for holding that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the Constitution or in a manner that they should know transgresses a clearly established constitutional rule. Pp. 504-508. 4. Although a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, there are some officials whose special functions require a full exemption from liability. Pp. 508-517. (a) In light of the safeguards provided in agency adjudication to assure that the hearing examiner or administrative law judge exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency, the risk of an unconstitutional act by one presiding at the agency hearing is clearly outweighed by the importance of preserving such independent judgment. Therefore, persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Pp. 508-514. (b) Agency officials who perform functions analogous to those of a prosecutor must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision. Pp. 515-516. (c) There is no substantial difference between the function of an agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court, and since administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record, an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence. Pp. 516-517. 5. The case is remanded for application of the foregoing principles to the claims against the particular petitioner-defendants involved. P. 517. 535 F.2d 688, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion, concurring in part and dissenting in part, in which BURGER, C. J., and STEWART and STEVENS, JJ., joined, post, p. 517.Deputy Solicitor General Friedman argued the cause for petitioners. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, Robert E. Kopp, and Barbara L. Herwig.David C. Buxbaum argued the cause and filed a brief for respondents.MR. JUSTICE WHITE delivered the opinion of the Court.This case concerns the personal immunity of federal officials in the Executive Branch from claims for damages arising from their violations of citizens' constitutional rights. Respondent1 filed suit against a number of officials in the Department of Agriculture claiming that they had instituted an investigation and an administrative proceeding against him in retaliation for his criticism of that agency. The District Court dismissed the action on the ground that the individual defendants, as federal officials, were entitled to absolute immunity for all discretionary acts within the scope of their authority. The Court of Appeals reversed, holding that the defendants were entitled only to the qualified immunity available to their counterparts in state government. Economou v. U.S. Department of Agriculture, 535 F.2d 688 (1976). Because of the importance of immunity doctrine to both the vindication of constitutional guarantees and the effective functioning of government, we granted certiorari. .IRespondent controls Arthur N. Economou and Co., Inc., which was at one time registered with the Department of Agriculture as a commodity futures commission merchant. Most of respondent's factual allegations in this lawsuit focus on an earlier administrative proceeding in which the Department of Agriculture sought to revoke or suspend the company's registration. On February 19, 1970, following an audit, the Department of Agriculture issued an administrative complaint alleging that respondent, while a registered merchant, had willfully failed to maintain the minimum financial requirements prescribed by the Department. After another audit, an amended complaint was issued on June 22, 1970. A hearing was held before the Chief Hearing Examiner of the Department, who filed a recommendation sustaining the administrative complaint. The Judicial Officer of the Department, to whom the Secretary had delegated his decisional authority in enforcement proceedings, affirmed the Chief Hearing Examiner's decision. On respondent's petition for review, the Court of Appeals for the Second Circuit vacated the order of the Judicial Officer. It reasoned that "the essential finding of willfulness ... was made in a proceeding instituted without the customary warning letter, which the Judicial Officer conceded might well have resulted in prompt correction of the claimed insufficiencies." Economou v. U.S. Department of Agriculture, 494 F.2d 519 (1974).While the administrative complaint was pending before the Judicial Officer, respondent filed this lawsuit in Federal District Court. Respondent sought initially to enjoin the progress of the administrative proceeding, but he was unsuccessful in that regard. On March 31, 1975, respondent filed a second amended complaint seeking damages. Named as defendants were the individuals who had served as Secretary and Assistant Secretary of Agriculture during the relevant events; the Judicial Officer and Chief Hearing Examiner; several officials in the Commodity Exchange Authority;2 the Agriculture Department attorney who had prosecuted the enforcement proceeding; and several of the auditors who had investigated respondent or were witnesses against respondent.3 The complaint stated that prior to the issuance of the administrative complaints respondent had been "sharply critical of the staff and operations of Defendants and carried on a vociferous campaign for the reform of Defendant Commodity Exchange Authority to obtain more effective regulation of commodity trading." App. 157-158. The complaint also stated that, some time prior to the issuance of the February 19 complaint, respondent and his company had ceased to engage in activities regulated by the defendants. The complaint charged that each of the administrative complaints had been issued without the notice or warning required by law; that the defendants had furnished the complaints "to interested persons and others without furnishing respondent's answers as well"; and that following the issuance of the amended complaint, the defendants had issued a "deceptive" press release that "falsely indicated to the public that [respondent's] financial resources had deteriorated, when Defendants knew that their statement was untrue and so acknowledge[d] previously that said assertion was untrue." Ibid.4 The complaint then presented 10 "causes of action," some of which purported to state claims for damages under the United States Constitution. For example, the first "cause of action" alleged that respondent had been denied due process of law because the defendants had instituted unauthorized proceedings against him without proper notice and with the knowledge that respondent was no longer subject to their regulatory jurisdiction. The third "cause of action" stated that by means of such actions "the Defendants discouraged and chilled the campaign of criticism [plaintiff] directed against them, and thereby deprived the [plaintiff] of [his] rights to free expression guaranteed by the First Amendment of the United States Constitution."5 The defendants moved to dismiss the complaint on the ground that "as to the individual defendants it is barred by the doctrine of official immunity ... ." Id., at 163. The defendants relied on an affidavit submitted earlier in the litigation by the attorney who had prosecuted the original administrative complaint against respondent. He stated that the Secretary of Agriculture had had no involvement with the case and that each of the other named defendants had acted "within the course of his official duties." Id., at 142-149.The District Court, apparently relying on the plurality opinion in Barr v. Matteo, , held that the individual defendants would be entitled to immunity if they could show that "their alleged unconstitutional acts were within the outer perimeter of their authority and discretionary." App. to Pet. for Cert. 25a. After examining the nature of the acts alleged in the complaint, the District Court concluded: "Since the individual defendants have shown that their alleged unconstitutional acts were both within the scope of their authority and discretionary, we dismiss the second amended complaint as to them."6 Id., at 28a.The Court of Appeals for the Second Circuit reversed the District Court's judgment of dismissal with respect to the individual defendants. Economou v. U.S. Department of Agriculture, 535 F.2d 688 (1976). The Court of Appeals reasoned that Barr v. Matteo, supra, did not "represen[t] the last word in this evolving area," 535 F.2d, at 691, because principles governing the immunity of officials of the Executive Branch had been elucidated in later decisions dealing with constitutional claims against state officials. E. g., Pierson v. Ray, ; Scheuer v. Rhodes, ; Wood v. Strickland, . These opinions were understood to establish that officials of the Executive Branch exercising discretionary functions did not need the protection of an absolute immunity from suit, but only a qualified immunity based on good faith and reasonable grounds. The Court of Appeals rejected a proposed distinction between suits against state officials sued pursuant to 42 U.S.C. 1983 and suits against federal officials under the Constitution, noting that "[o]ther circuits have also concluded that the Supreme Court's development of official immunity doctrine in 1983 suits against state officials applies with equal force to federal officers sued on a cause of action derived directly from the Constitution, since both types of suits serve the same function of protecting citizens against violations of their constitutional rights by government officials." 535 F.2d, at 695 n. 7. The Court of Appeals recognized that under Imbler v. Pachtman, , state prosecutors were entitled to absolute immunity from 1983 damages liability but reasoned that Agriculture Department officials performing analogous functions did not require such an immunity because their cases turned more on documentary proof than on the veracity of witnesses and because their work did not generally involve the same constraints of time and information present in criminal cases. 535 F.2d, at 696 n. 8. The court concluded that all of the defendants were "adequately protected by permitting them to avail themselves of the defense of qualified `good faith, reasonable grounds' immunity of the type approved by the Supreme Court in Scheuer and Wood." Id., at 696. After noting that summary judgment would be available to the defendants if there were no genuine factual issues for trial, the Court of Appeals remanded the case for further proceedings.IIThe single submission by the United States on behalf of petitioners is that all of the federal officials sued in this case are absolutely immune from any liability for damages even if in the course of enforcing the relevant statutes they infringed respondent's constitutional rights and even if the violation was knowing and deliberate. Although the position is earnestly and ably presented by the United States, we are quite sure that it is unsound and consequently reject it.In Bivens v. Six Unknown Fed. Narcotics Agents, , the victim of an arrest and search claimed to be violative of the Fourth Amendment brought suit for damages against the responsible federal agents. Repeating the declaration in Marbury v. Madison, 1 Cranch 137, 163 (1803), that "`[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws,'" 403 U.S., at 397, and stating that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty," id., at 395, we rejected the claim that the plaintiff's remedy lay only in the state court under state law, with the Fourth Amendment operating merely to nullify a defense of federal authorization. We held that a violation of the Fourth Amendment by federal agents gives rise to a cause of action for damages consequent upon the unconstitutional conduct. Ibid.7 Bivens established that compensable injury to a constitutionally protected interest could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts,8 but we reserved the question whether the agents involved were "immune from liability by virtue of their official position," and remanded the case for that determination. On remand, the Court of Appeals for the Second Circuit, as has every other Court of Appeals that has faced the question,9 held that the agents were not absolutely immune and that the public interest would be sufficiently protected by according the agents and their superiors a qualified immunity.In our view, the Courts of Appeals have reached sound results. We cannot agree with the United States that our prior cases are to the contrary and support the rule it now urges us to embrace. Indeed, as we see it, the Government's submission is contrary to the course of decision in this Court from the very early days of the Republic.The Government places principal reliance on Barr v. Matteo, . In that case, the acting director of an agency had been sued for malicious defamation by two employees whose suspension for misconduct he had announced in a press release. The defendant claimed an absolute or qualified privilege, but the trial court rejected both and the jury returned a verdict for plaintiff.In the 1958 Term,10 the Court granted certiorari in Barr "to determine whether in the circumstances of this case petitioner's claim of absolute privilege should have stood as a bar to maintenance of the suit despite the allegations of malice made in the complaint." Id., at 569. The Court was divided in reversing the judgment of the Court of Appeals, and there was no opinion for the Court.11 The plurality opinion inquired whether the conduct complained of was among those "matters committed by law to [the official's] control" and concluded, after an analysis of the specific circumstances, that the press release was within the "outer perimeter of [his] line of duty" and was "an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively." Id., at 575. The plurality then held that under Spalding v. Vilas, , the act was privileged and that the officer could not be held liable for the tort of defamation despite the allegations of malice.12 Barr clearly held that a false and damaging publication, the issuance of which was otherwise within the official's authority, was not itself actionable and would not become so by being issued maliciously. The Court did not choose to discuss whether the director's privilege would be defeated by showing that he was without reasonable grounds for believing his release was true or that he knew that it was false, although the issue was in the case as it came from the Court of Appeals.13 Barr does not control this case. It did not address the liability of the acting director had his conduct not been within the outer limits of his duties, but from the care with which the Court inquired into the scope of his authority, it may be inferred that had the release been unauthorized, and surely if the issuance of press releases had been expressly forbidden by statute, the claim of absolute immunity would not have been upheld. The inference is supported by the fact that MR. JUSTICE STEWART, although agreeing with the principles announced by Mr. Justice Harlan, dissented and would have rejected the immunity claim because the press release, in his view, was not action in the line of duty. 360 U.S., at 592. It is apparent also that a quite different question would have been presented had the officer ignored an express statutory or constitutional limitation on his authority.Barr did not, therefore, purport to depart from the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers. The immunity of federal executive officials began as a means of protecting them in the execution of their federal statutory duties from criminal or civil actions based on state law. See Osborn v. Bank of the United States, 9 Wheat. 738, 865-866 (1824).14 A federal official who acted outside of his federal statutory authority would be held strictly liable for his trespassory acts. For example, Little v. Barreme, 2 Cranch 170 (1804), held the commander of an American warship liable in damages for the seizure of a Danish cargo ship on the high seas. Congress had directed the President to intercept any vessels reasonably suspected of being en route to a French port, but the President had authorized the seizure of suspected vessels whether going to or from French ports, and the Danish vessel seized was en route from a forbidden destination. The Court, speaking through Mr. Chief Justice Marshall, held that the President's instructions could not "change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass." Id., at 179. Although there was probable cause to believe that the ship was engaged in traffic with the French, the seizure at issue was not among that class of seizures that the Executive had been authorized by statute to effect. See also Wise v. Withers, 3 Cranch 331 (1806).Bates v. Clark, , was a similar case. The relevant statute directed seizures of alcoholic beverages in Indian country, but the seizure at issue, which was made upon the orders of a superior, was not made in Indian country. The "objection fatal to all this class of defenses is that in that locality [the seizing officers] were utterly without any authority in the premises" and hence were answerable in damages. Id., at 209.As these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law. "To make out his defence he must show that his authority was sufficient in law to protect him." Cunningham v. Macon & Brunswick R. Co., ; Belknap v. Schild, . Since an unconstitutional act, even if authorized by statute, was viewed as not authorized in contemplation of law, there could be no immunity defense.15 See United States v. Lee, ; Virginia Coupon Cases, .16 In both Barreme and Bates, the officers did not merely mistakenly conclude that the circumstances warranted a particular seizure, but failed to observe the limitations on their authority by making seizures not within the category or type of seizures they were authorized to make. Kendall v. Stokes, 3 How. 87 (1845), addressed a different situation. The case involved a suit against the Postmaster General for erroneously suspending payments to a creditor of the Post Office. Examining and, if necessary, suspending payments to creditors were among the Postmaster's normal duties, and it appeared that he had simply made a mistake in the exercise of the discretion conferred upon him. He was held not liable in damages since "a public officer, acting to the best of his judgment and from a sense of duty, in a matter of account with an individual [is not] liable in an action for an error of judgment." Id., at 97-98. Having "the right to examine into this account" and the right to suspend it in the proper circumstances, id., at 98, the officer was not liable in damages if he fell into error, provided, however, that he acted "from a sense of public duty and without malice." Id., at 99.Four years later, in a case involving military discipline, the Court issued a similar ruling, exculpating the defendant officer because of the failure to prove that he had exceeded his jurisdiction or had exercised it in a malicious or willfully erroneous manner: "[I]t is not enough to show he committed an error of judgment, but it must have been a malicious and wilful error." Wilkes v. Dinsman, 7 How. 89, 131 (1849).In Spalding v. Vilas, , on which the Government relies, the principal issue was whether the malicious motive of an officer would render him liable in damages for injury inflicted by his official act that otherwise was within the scope of his authority. The Postmaster General was sued for circulating among the postmasters a notice that assertedly injured the reputation of the plaintiff and interfered with his contractual relationships. The Court first inquired as to the Postmaster General's authority to issue the notice. In doing so, it "recognize[d] a distinction between action taken by the head of a Department in reference to matters which are manifestly or palpably beyond his authority, and action having more or less connection with the general matters committed by law to his control or supervision." Id., at 498. Concluding that the circular issued by the Postmaster General "was not unauthorized by law, nor beyond the scope of his official duties," the Court then addressed the major question in the case - whether the action could be "maintained because of the allegation that what the officer did was done maliciously?" Id., at 493. Its holding was that the head of a department could not be "held liable to a civil suit for damages on account of official communications made by him pursuant to an act of Congress, and in respect of matters within his authority," however improper his motives might have been. Id., at 498. Because the Postmaster General in issuing the circular in question "did not exceed his authority, nor pass the line of his duty," id., at 499, it was irrelevant that he might have acted maliciously.17 Spalding made clear that a malicious intent will not subject a public officer to liability for performing his authorized duties as to which he would otherwise not be subject to damages liability.18 But Spalding did not involve conduct manifestly or otherwise beyond the authority of the official, nor did it involve a mistake of either law or fact in construing or applying the statute.19 It did not purport to immunize officials who ignore limitations on their authority imposed by law. Although the "manifestly or palpably" standard for examining the reach of official power may have been suggested as a gloss on Barreme, Bates, Kendall, and Wilkes, none of those cases was overruled.20 It is also evident that Spalding presented no claim that the officer was liable in damages because he had acted in violation of a limitation placed upon his conduct by the United States Constitution. If any inference is to be drawn from Spalding in any of these respects, it is that the official would not be excused from liability if he failed to observe obvious statutory or constitutional limitations on his powers or if his conduct was a manifestly erroneous application of the statute.Insofar as cases in this Court dealing with the immunity or privilege of federal officers are concerned,21 this is where the matter stood until Barr v. Matteo. There, as we have set out above, immunity was granted even though the publication contained a factual error, which was not the case in Spalding. The plurality opinion and judgment in Barr also appear - although without any discussion of the matter - to have extended absolute immunity to an officer who was authorized to issue press releases, who was assumed to know that the press release he issued was false and who therefore was deliberately misusing his authority. Accepting this extension of immunity with respect to state tort claims, however, we are confident that Barr did not purport to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution.22 Whatever level of protection from state interference is appropriate for federal officials executing their duties under federal law, it cannot be doubted that these officials, even when acting pursuant to congressional authorization, are subject to the restraints imposed by the Federal Constitution.The liability of officials who have exceeded constitutional limits was not confronted in either Barr or Spalding. Neither of those cases supports the Government's position. Beyond that, however, neither case purported to abolish the liability of federal officers for actions manifestly beyond their line of duty; and if they are accountable when they stray beyond the plain limits of their statutory authority, it would be incongruous to hold that they may nevertheless willfully or knowingly violate constitutional rights without fear of liability.Although it is true that the Court has not dealt with this issue with respect to federal officers,23 we have several times addressed the immunity of state officers when sued under 42 U.S.C. 1983 for alleged violations of constitutional rights. These decisions are instructive for present purposes.IIIPierson v. Ray, , decided that 1983 was not intended to abrogate the immunity of state judges which existed under the common law and which the Court had held applicable to federal judges in Bradley v. Fisher, 13 Wall. 335 (1872). Pierson also presented the issue "whether immunity was available to that segment of the executive branch of a state government that is ... most frequently exposed to situations which can give rise to claims under 1983 - the local police officer." Scheuer v. Rhodesat 244-245. Relying on the common law, we held that police officers were entitled to a defense of "good faith and probable cause," even though an arrest might subsequently be proved to be unconstitutional. We observed, however, that "[t]he common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one." 386 U.S., at 555.In Scheuer v. Rhodes, supra, the issue was whether "higher officers of the executive branch" of state governments were immune from liability under 1983 for violations of constitutionally protected rights. 416 U.S., at 246. There, the Governor of a State, the senior and subordinate officers of the state National Guard, and a state university president had been sued on the allegation that they had suppressed a civil disturbance in an unconstitutional manner. We explained that the doctrine of official immunity from 1983 liability, although not constitutionally grounded and essentially a matter of statutory construction, was based on two mutually dependent rationales:"(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good." 416 U.S., at 240. The opinion also recognized that executive branch officers must often act swiftly and on the basis of factual information supplied by others, constraints which become even more acute in the "atmosphere of confusion, ambiguity, and swiftly moving events" created by a civil disturbance. Id., at 246-247. Although quoting at length from Barr v. Matteo,24 we did not believe that there was a need for absolute immunity from 1983 liability for these high-ranking state officials. Rather the considerations discussed above indicated:"[I]n varying scope, a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." 416 U.S., at 247-248. Subsequent decisions have applied the Scheuer standard in other contexts. In Wood v. Strickland, , school administrators were held entitled to claim a similar qualified immunity. A school board member would lose his immunity from a 1983 suit only if "he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student." 420 U.S., at 322. In O'Connor v. Donaldson, , we applied the same standard to the superintendent of a state hospital. In Procunier v. Navarette, , we held that prison administrators would be adequately protected by the qualified immunity outlined in Scheuer and Wood. We emphasized, however, that, at least in the absence of some showing of malice, an official would not be held liable in damages under 1983 unless the constitutional right he was alleged to have violated was "clearly established" at the time of the violation.None of these decisions with respect to state officials furnishes any support for the submission of the United States that federal officials are absolutely immune from liability for their constitutional transgressions. On the contrary, with impressive unanimity, the Federal Courts of Appeals have concluded that federal officials should receive no greater degree of protection from constitutional claims than their counterparts in state government.25 Subsequent to Scheuer, the Court of Appeals for the Fourth Circuit concluded that "[a]lthough Scheuer involved a suit against state executive officers, the court's discussion of the qualified nature of executive immunity would appear to be equally applicable to federal executive officers." States Marine Lines v. Shultz, 498 F.2d 1146, 1159 (1974). In the view of the Court of Appeals for the Second Circuit,"it would be `incongruous and confusing, to say the least' to develop different standards of immunity for state officials sued under 1983 and federal officers sued on similar grounds under causes of action founded directly on the Constitution." Economou v. U.S. Dept. of Agriculture, 535 F.2d, at 695 n. 7, quoting Bivens v. Six Unknown Fed. Narcotics Agents, 456 F.2d 1339, 1346-1347 (CA2 1972) (on remand).26 The Court of Appeals for the Ninth Circuit has reasoned:"[Defendants] offer no significant reason for distinguishing, as far as the immunity doctrine is concerned, between litigation under 1983 against state officers and actions against federal officers alleging violation of constitutional rights under the general federal question statute. In contrast, the practical advantage of having just one federal immunity doctrine for suits arising under federal law is self-evident. Further, the rights at stake in a suit brought directly under the Bill of Rights are no less worthy of full protection than the constitutional and statutory rights protected by 1983." Mark v. Groff, 521 F.2d 1376, 1380 (1975). Other courts have reached similar conclusions. E. g., Apton v. WilsonApp. D.C. 22, 506 F.2d 83 (1974); Brubaker v. King, 505 F.2d 534 (CA7 1974); see Weir v. Muller, 527 F.2d 872 (CA5 1976); Paton v. La Prade, 524 F.2d 862 (CA3 1975); Jones v. United States, 536 F.2d 269 (CA8 1976); G. M. Leasing Corp. v. United States, 560 F.2d 1011 (CA10 1977).27 We agree with the perception of these courts that, in the absence of congressional direction to the contrary, there is no basis for according to federal officials a higher degree of immunity from liability when sued for a constitutional infringement as authorized by Bivens than is accorded state officials when sued for the identical violation under 1983. The constitutional injuries made actionable by 1983 are of no greater magnitude than those for which federal officials may be responsible. The pressures and uncertainties facing decisionmakers in state government are little if at all different from those affecting federal officials.28 We see no sense in holding a state governor liable but immunizing the head of a federal department; in holding the administrator of a federal hospital immune where the superintendent of a state hospital would be liable; in protecting the warden of a federal prison where the warden of a state prison would be vulnerable; or in distinguishing between state and federal police participating in the same investigation. Surely, federal officials should enjoy no greater zone of protection when they violate federal constitutional rules than do state officers.The Government argues that the cases involving state officials are distinguishable because they reflect the need to preserve the effectiveness of the right of action authorized by 1983. But as we discuss more fully below, the cause of action recognized in Bivens v. Six Unknown Fed. Narcotics Agents, , would similarly be "drained of meaning" if federal officials were entitled to absolute immunity for their constitutional transgressions. Cf. Scheuer v. Rhodes, 416 U.S., at 248.Moreover, the Government's analysis would place undue emphasis on the congressional origins of the cause of action in determining the level of immunity. It has been observed more than once that the law of privilege as a defense to damages actions against officers of Government has "in large part been of judicial making." Barr v. Matteo, 360 U.S., at 569; Doe v. McMillan, . Section 1 of the Civil Rights Act of 187129 - the predecessor of 1983 - said nothing about immunity for state officials. It mandated that any person who under color of state law subjected another to the deprivation of his constitutional rights would be liable to the injured party in an action at law.30 This Court nevertheless ascertained and announced what it deemed to be the appropriate type of immunity from 1983 liability in a variety of contexts. Pierson v. Ray, ; Imbler v. Pachtman, ; Scheuer v. Rhodes, supra. The federal courts are equally competent to determine the appropriate level of immunity where the suit is a direct claim under the Federal Constitution against a federal officer.The presence or absence of congressional authorization for suits against federal officials is, of course, relevant to the question whether to infer a right of action for damages for a particular violation of the Constitution. In Bivens, the Court noted the "absence of affirmative action by Congress" and therefore looked for "special factors counselling hesitation." 403 U.S., at 396. Absent congressional authorization, a court may also be impelled to think more carefully about whether the type of injury sustained by the plaintiff is normally compensable in damages, id., at 397, and whether the courts are qualified to handle the types of questions raised by the plaintiff's claim, see id., at 409 (Harlan, J., concurring in judgment).But once this analysis is completed, there is no reason to return again to the absence of congressional authorization in resolving the question of immunity. Having determined that the plaintiff is entitled to a remedy in damages for a constitutional violation, the court then must address how best to reconcile the plaintiff's right to compensation with the need to protect the decisionmaking processes of an executive department. Since our decision in Scheuer was intended to guide the federal courts in resolving this tension in the myriad factual situations in which it might arise, we see no reason why it should not supply the governing principles for resolving this dilemma in the case of federal officials. The Court's opinion in Scheuer relied on precedents dealing with federal as well as state officials, analyzed the issue of executive immunity in terms of general policy considerations, and stated its conclusion, quoted supra, in the same universal terms. The analysis presented in that case cannot be limited to actions against state officials.Accordingly, without congressional directions to the contrary, we deem it untenable to draw a distinction for purposes of immunity law between suits brought against state officials under 1983 and suits brought directly under the Constitution against federal officials. The 1983 action was provided to vindicate federal constitutional rights. That Congress decided, after the passage of the Fourteenth Amendment, to enact legislation specifically requiring state officials to respond in federal court for their failures to observe the constitutional limitations on their powers is hardly a reason for excusing their federal counterparts for the identical constitutional transgressions. To create a system in which the Bill of Rights monitors more closely the conduct of state officials than it does that of federal officials is to stand the constitutional design on its head.IVAs we have said, the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal-question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official. As Mr. Justice Harlan, concurring in the judgment, pointed out, the action for damages recognized in Bivens could be a vital means of providing redress for persons whose constitutional rights have been violated. The barrier of sovereign immunity is frequently impenetrable.31 Injunctive or declaratory relief is useless to a person who has already been injured. "For people in Bivens' shoes, it is damages or nothing." 403 U.S., at 410.Our opinion in Bivens put aside the immunity question; but we could not have contemplated that immunity would be absolute.32 If, as the Government argues, all officials exercising discretion were exempt from personal liability, a suit under the Constitution could provide no redress to the injured citizen, nor would it in any degree deter federal officials from committing constitutional wrongs. Moreover, no compensation would be available from the Government, for the Tort Claims Act prohibits recovery for injuries stemming from discretionary acts, even when that discretion has been abused.33 The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects - including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen's house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees.Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law: "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S., at 220. See also Marbury v. Madison, 1 Cranch 137 (1803); Scheuer v. Rhodes, 416 U.S., at 239-240. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.This is not to say that considerations of public policy fail to support a limited immunity for federal executive officials. We consider here, as we did in Scheuer, the need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. Yet Scheuer and other cases have recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment. We therefore hold that, in a suit for damages arising from unconstitutional action, federal executive officials exercising discretion are entitled only to the qualified immunity specified in Scheuer, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.34 The Scheuer principle of only qualified immunity for constitutional violations is consistent with Barr v. Matteo, , Spalding v. Vilas, , and Kendall v. Stokes, 3 How. 87 (1847). Federal officials will not be liable for mere mistakes in judgment, whether the mistake is one of fact or one of law. But we see no substantial basis for holding, as the United States would have us do, that executive officers generally may with impunity discharge their duties in a way that is known to them to violate the United States Constitution or in a manner that they should know transgresses a clearly established constitutional rule. The principle should prove as workable in suits against federal officials as it has in the context of suits against state officials. Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity.35 See 416 U.S., at 250. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.VAlthough a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, our decisions recognize that there are some officials whose special functions require a full exemption from liability. E. g., Bradley v. Fisher, 13 Wall. 335 (1872); Imbler v. Pachtman, . In each case, we have undertaken "a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it." Id., at 421.In Bradley v. Fisher, the Court analyzed the need for absolute immunity to protect judges from lawsuits claiming that their decisions had been tainted by improper motives. The Court began by noting that the principle of immunity for acts done by judges "in the exercise of their judicial functions" had been "the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country." 13 Wall., at 347. The Court explained that the value of this rule was proved by experience. Judges were often called to decide "[c]ontroversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings." Id., at 348. Such adjudications invariably produced at least one losing party, who would "accep[t] anything but the soundness of the decision in explanation of the action of the judge." Ibid. "Just in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge." Ibid. If a civil action could be maintained against a judge by virtue of an allegation of malice, judges would lose "that independence without which no judiciary can either be respectable or useful." Id., at 347. Thus, judges were held to be immune from civil suit "for malice or corruption in their action whilst exercising their judicial functions within the general scope of their jurisdiction." Id., at 354.36 The principle of Bradley was extended to federal prosecutors through the summary affirmance in Yaselli v. Goff, , aff'g 12 F.2d 396 (CA2 1926). The Court of Appeals in that case discussed in detail the common-law precedents extending absolute immunity to parties participating in the judicial process: judges, grand jurors, petit jurors, advocates, and witnesses. Grand jurors had received absolute immunity "`lest they should be biased with the fear of being harassed by a vicious suit for acting according to their consciences (the danger of which might easily be insinuated where powerful men are warmly engaged in a cause and thoroughly prepossessed of the justice of the side which they espouse).'" Id., at 403, quoting 1 W. Hawkins, Pleas of the Crown 349 (6th ed. 1787). The court then reasoned that "`[t]he public prosecutor, in deciding whether a particular prosecution shall be instituted or followed up, performs much the same function as a grand jury.'" 12 F.2d, at 404, quoting Smith v. Parman, 101 Kan. 115, 116, 165 P. 663 (1917). The court held the prosecutor in that case immune from suit for malicious prosecution and this Court, citing Bradley v. Fisher, supra, affirmed.We recently reaffirmed the holding of Yaselli v. Goff in Imbler v. Pachtman, supra, a suit against a state prosecutor under 1983. The Court's examination of the leading precedents led to the conclusion that "[t]he common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties." 424 U.S., at 422-423. The prosecutor's role in the criminal justice system was likely to provoke "with some frequency" retaliatory suits by angry defendants. Id., at 425. A qualified immunity might have an adverse effect on the functioning of the criminal justice system, not only by discouraging the initiation of prosecutions, see id., at 426 n. 24, but also by affecting the prosecutor's conduct of the trial."Attaining the system's goal of accurately determining guilt or innocence requires that both the prosecution and the defense have wide discretion in the conduct of the trial and the presentation of evidence... . If prosecutors were hampered in exercising their judgment as to the use of ... witnesses by concern about resulting personal liability, the triers of fact in criminal cases often would be denied relevant evidence." Id., at 426. In light of these and other practical considerations, the Court held that the defendant in that case was entitled to absolute immunity with respect to his activities as an advocate, "activities [which] were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id., at 430.37 Despite these precedents, the Court of Appeals concluded that all of the defendants in this case - including the Chief Hearing Examiner, Judicial Officer, and prosecuting attorney - were entitled to only a qualified immunity. The Court of Appeals reasoned that officials within the Executive Branch generally have more circumscribed discretion and pointed out that, unlike a judge, officials of the Executive Branch would face no conflict of interest if their legal representation was provided by the Executive Branch. The Court of Appeals recognized that "some of the Agriculture Department officials may be analogized to criminal prosecutors, in that they initiated the proceedings against [respondent], and presented evidence therein," 535 F.2d, at 696 n. 8, but found that attorneys in administrative proceedings did not face the same "serious constraints of time and even information" which this Court has found to be present frequently in criminal cases. See Imbler v. Pachtman, 424 U.S., at 425.We think that the Court of Appeals placed undue emphasis on the fact that the officials sued here are - from an administrative perspective - employees of the Executive Branch. Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities. This point is underlined by the fact that prosecutors - themselves members of the Executive Branch - are also absolutely immune. "It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors and prosecutors being referred to as `quasi-judicial' officers, and their immunities being termed `quasi-judicial' as well." Id., at 423 n. 20.The cluster of immunities protecting the various participants in judge-supervised trials stems from the characteristics of the judicial process rather than its location. As the Bradley Court suggested, 13 Wall., at 348-349, controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus. See Pierson v. Ray, 386 U.S., at 554. Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.At the same time, the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges.38 Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages. The conflicts which federal hearing examiners seek to resolve are every bit as fractious as those which come to court. As the Bradley opinion points out: "When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, or touches the interests of numerous parties, the disappointment occasioned by an adverse decision, often finds vent in imputations of [malice]." 13 Wall., at 348. Moreover, federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. See 5 U.S.C. 555 (b) (1976 ed.). They are conducted before a trier of fact insulated from political influence. See 554 (d). A party is entitled to present his case by oral or documentary evidence, 556 (d), and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. 556 (e). The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record. 557 (c).There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See 556 (c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency. Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, see, e. g., Wong Yang Sung v. McGrath, , and because they were often subordinate to executive officials within the agency, see Ramspeck v. Federal Trial Examiners Conference, . Since the securing of fair and competent hearing personnel was viewed as "the heart of formal administrative adjudication," Final Report of the Attorney General's Committee on Administrative Procedure 46 (1941), the Administrative Procedure Act contains a number of provisions designed to guarantee the independence of hearing examiners. They may not perform duties inconsistent with their duties as hearing examiners. 5 U.S.C. 3105 (1976 ed.). When conducting a hearing under 5 of the APA, 5 U.S.C. 554 (1976 ed.), a hearing examiner is not responsible to, or subject to the supervision or direction of, employees or agents engaged in the performance of investigative or prosecution functions for the agency. 5 U.S.C. 554 (d) (2) (1976 ed.). Nor may a hearing examiner consult any person or party, including other agency officials, concerning a fact at issue in the hearing, unless on notice and opportunity for all parties to participate. 554 (d) (1). Hearing examiners must be assigned to cases in rotation so far as is practicable. 3105. They may be removed only for good cause established and determined by the Civil Service Commission after a hearing on the record. 7521. Their pay is also controlled by the Civil Service Commission.In light of these safeguards, we think that the risk of an unconstitutional act by one presiding at an agency hearing is clearly outweighed by the importance of preserving the independent judgment of these men and women. We therefore hold that persons subject to these restraints and performing adjudicatory functions within a federal agency are entitled to absolute immunity from damages liability for their judicial acts. Those who complain of error in such proceedings must seek agency or judicial review. We also believe that agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts. The decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor's decision to initiate or move forward with a criminal prosecution. An agency official, like a prosecutor, may have broad discretion in deciding whether a proceeding should be brought and what sanctions should be sought. The Commodity Futures Trading Commission, for example, may initiate proceedings whenever it has "reason to believe" that any person "is violating or has violated any of the provisions of this chapter or of the rules, regulations, or orders of the Commission." 7 U.S.C. 9 (1976 ed.). A range of sanctions is open to it. Ibid.The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete. Cf. Imbler v. Pachtman, 424 U.S., at 426 n. 24. While there is not likely to be anyone willing and legally able to seek damages from the officials if they do not authorize the administrative proceeding, cf. id., at 438 (WHITE, J., concurring in judgment), there is a serious danger that the decision to authorize proceedings will provoke a retaliatory response. An individual targeted by an administrative proceeding will react angrily and may seek vengeance in the courts. A corporation will muster all of its financial and legal resources in an effort to prevent administrative sanctions. "When millions may turn on regulatory decisions, there is a strong incentive to counter-attack."39 The defendant in an enforcement proceeding has ample opportunity to challenge the legality of the proceeding. An administrator's decision to proceed with a case is subject to scrutiny in the proceeding itself. The respondent may present his evidence to an impartial trier of fact and obtain an independent judgment as to whether the prosecution is justified. His claims that the proceeding is unconstitutional may also be heard by the courts. Indeed, respondent in this case was able to quash the administrative order entered against him by means of judicial review. See Economou v. U.S. Department of Agriculture, 494 F.2d 519 (CA2 1974).We believe that agency officials must make the decision to move forward with an administrative proceeding free from intimidation or harassment. Because the legal remedies already available to the defendant in such a proceeding provide sufficient checks on agency zeal, we hold that those officials who are responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision.We turn finally to the role of an agency attorney in conducting a trial and presenting evidence on the record to the trier of fact. We can see no substantial difference between the function of the agency attorney in presenting evidence in an agency hearing and the function of the prosecutor who brings evidence before a court.40 In either case, the evidence will be subject to attack through cross-examination, rebuttal, or reinterpretation by opposing counsel. Evidence which is false or unpersuasive should be rejected upon analysis by an impartial trier of fact. If agency attorneys were held personally liable in damages as guarantors of the quality of their evidence, they might hesitate to bring forward some witnesses or documents. "This is particularly so because it is very difficult if not impossible for attorneys to be absolutely certain of the objective truth or falsity of the testimony which they present." Imbler v. Pachtman, supra, at 440 (WHITE, J., concurring in judgment). Apart from the possible unfairness to agency personnel, the agency would often be denied relevant evidence. Cf. Imbler v. Pachtman, supra, at 426. Administrative agencies can act in the public interest only if they can adjudicate on the basis of a complete record. We therefore hold that an agency attorney who arranges for the presentation of evidence on the record in the course of an adjudication is absolutely immune from suits based on the introduction of such evidence.VIThere remains the task of applying the foregoing principles to the claims against the particular petitioner-defendants involved in this case. Rather than attempt this here in the first instance, we vacate the judgment of the Court of Appeals and remand the case to that court with instructions to remand the case to the District Court for further proceedings consistent with this opinion. So ordered. |
9 | Under 54:4-22 of the Revised Statutes of New Jersey, as amended by Laws of 1938, c. 245, a taxing district of the State levied against the intangible property of a stock insurance company an assessment for the taxable year 1945 in the amount of 15 per cent of the company's paid-up capital and surplus, computed without deducting the principal amount of certain United States bonds and accrued interest thereon. Held: The assessment was invalid as in conflict with 3701 of the Revised Statutes of the United States, which provides that "All stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority." Pp. 666-676. (a) The tax authorized by the state statute, whether levied against capital and surplus less liabilities or against entire net worth, was in practical operation and effect a tax upon federal bonds. Pp. 672-673. (b) Tradesmens National Bank v. Oklahoma Tax Comm'n, , and Educational Films Corp. v. Ward, , distinguished. Pp. 673-674. (c) A tax on corporate capital measured by federal securities may be invalid even though imposed without discrimination against federal obligations. Pp. 674-675. (d) If the amount here assessed be viewed as levied exclusively on the corporation's net worth remaining after deduction of government bonds and interest, the assessment would be discriminatory because it would be levied at the rate of over 79 per cent of the corporation's assessable valuation rather than at the rate of 15 per cent prescribed by the state statute. P. 675. (e) The result here reached is consonant with the legislative purpose of R. S. 3701 "to prevent taxes which diminish in the slightest degree the market value or the investment attractiveness of obligations issued by the United States in an effort to secure necessary credit." P. 675. (f) The legislative purpose of R. S. 3701 also requires the exemption from assessment under the state statute of interest on federal securities which had accrued but had not yet been paid. Pp. 675-676. 1 N. J. 496, 64 A. 2d 341, reversed. An order of a state tax agency dismissing appellant's appeal from an assessment was reversed by the former New Jersey Supreme Court. 137 N. J. L. 444, 60 A. 2d 265. The Supreme Court of New Jersey as established under the present state constitution reversed. 1 N. J. 496, 64 A. 2d 341. On appeal to this Court, reversed, p. 676.Walter Gordon Merritt argued the cause for appellant. With him on the brief were H. Gardner Ingraham and Charles B. Niebling.Vincent J. Casale argued the cause for appellees. With him on the brief for the City of Newark, appellee, was Charles Handler.MR. JUSTICE CLARK delivered the opinion of the Court.A taxing district of New Jersey has levied against the intangible personal property of a domestic corporation an assessment for the taxable year 1945 in the amount of 15 per cent of the taxpayer's paid-up capital and surplus, computed without deducting the principal amount of certain United States bonds and accrued interest thereon. This appeal challenges the validity of the assessment and of the tax statute under which it was levied, on the ground of conflict with Art. I, 8 of the Federal Constitution, by which Congress is authorized "To borrow Money on the credit of the United States," and with 3701 of the Revised Statutes (1875), 31 U.S.C. 742, which generally exempts interest-bearing obligations of the United States from state and local taxation. The assessment in question was levied under 54:4-22 of the Revised Statutes of New Jersey (1937), as amended by Laws of 1938, c. 245.1 N. J. Rev. Stat. Cum. Supp., Laws of 1938, 1939, 1940, 54:4-22. That section provided as follows:"Every stock insurance company organized under the laws of this state, other than a life insurance company, shall be assessed and taxed in the taxing district where its office is situated, upon the full amount or value of its property (exclusive of real estate and tangible personal property, which shall be separately assessed and taxed where the same is located, and exclusive of all shares of stock owned by such insurance company and exclusive of nontaxable property and of property exempt from taxation), deducting from such amount or value all debts and liabilities certain and definite as to obligation and amount, and the full amount of all reserves for taxes, and such proportion of the reserves for unearned premiums, losses and other liabilities as the full amount or value of its taxable intangible property bears to the full amount or value of all its intangible property; provided, however, the assessment against the intangible personal property of any stock insurance company subject to the provisions of this section shall in no event be less than fifteen per centum of the sum of the paid-up capital and the surplus in excess of the total of all liabilities of such company, as the same are stated in the annual statement of such company for the calendar year next preceding the date of such assessment and filed with the department of banking and insurance of the state of New Jersey, after deducting from such total of capital and surplus the amount of all tax assessments against any and all real estate, title to which stands in the name of such company. "The capital stock in any such company shall not be regarded for the purposes of this act [section] as a liability and no part of the amount thereof shall be deducted, and the person or persons or corporations holding the capital stock of such company shall not be assessed or taxed therefor. No franchise tax shall be imposed upon any insurance company included in this section." (Italics added.)2 A corporation subject to this section was taxable at the rate of the local taxing district.Appellant is New Jersey Realty Title Insurance Company, a stock insurance company of New Jersey with its office in the City and taxing district of Newark, County of Essex, New Jersey. For the year 1945 the City of Newark levied an assessment of $75,700 on appellant's intangible personal property and collected from it a tax of $3,906.12 computed thereon.Appellant had filed a return3 based on its balance sheet at the close of business September 30, 1944, showing total assets of $774,972.98, the entirety of which was declared to be intangibles. In calculating its "total taxable intangibles" appellant deducted the following from its total assets: United States Treasury Bonds of the face amount of $450,000; accrued interest thereon in the amount of $1,682.25; and other nontaxable or exempt property valued at $318,771.95. The aggregate amount of the property thus excluded was $770,454.20. The remainder, $4,518.78, was entered on the return as the total taxable intangibles. From this amount appellant deducted: $25,756.63 as "debts and liabilities certain"; $28,175.46 as "reserves for taxes"; and $758.13 as "proportion of loss and premium." There is no disagreement with these computations. As observed by the highest court below, these deductions "left no balance of assessable property subject to tax."The taxing district therefore assessed appellant's property under the proviso in 54:4-22 which directed an assessment of not less than 15 per cent of "the sum of the paid-up capital and the surplus in excess of the total of all liabilities" of appellant as shown by its annual statement for the preceding calendar year filed with the state department of banking and insurance. The manner of computation of the assessment is not explicit in the record. Moreover, the opinion of the highest court of New Jersey is subject to several interpretations as to the proper method of computing the assessment. The court stated that the assessment "may not be less in amount than 15 percent of the paid-up capital and surplus as defined by the statute." (Italics added.) If by the phrase "as defined by the statute," the court referred to the language of the proviso in 54:4-22, "paid-up capital and the surplus in excess of the total of all liabilities" (italics added), it would seem necessary to deduct liabilities from capital and surplus in determining the basis for the 15 per cent computation. The basis of computation would then be $496,999.70,4 and the 15 per cent sum, $74,549.95. The court subsequently stated that "The assessment may equal or exceed 15 percent of the paid-up capital and surplus, and does not necessarily have to be precisely the same, but ... can not be less in amount than 15 percent of the paid-up capital and surplus." Such references to "paid-up capital and surplus," together with the court's characterization of the tax as laid on net worth, suggest that the assessment is computed against appellant's net worth of $547,462.93. On this basis, however, the 15 per cent sum would have been not less than $82,119.43, and the present assessment of less amount would not satisfy the court's interpretation of the statute as requiring a levy of not less than 15 per cent. For our disposition of this case, however, it is unnecessary to choose between these conflicting interpretations of the opinion of the court below.Clearly the State of New Jersey has negatived any purpose to authorize a tax assessment against the appellant's United States bonds. The court below conceded that the securities involved were, at the time of the assessment, exempt from state, municipal or local taxation. It is equally clear, however, that in the computation of the assessment the face value of appellant's government bonds, together with the interest thereon, was in fact included.5 Contending that 54:4-22 as thus applied contravenes paramount federal provisions, appellant sought cancellation of the assessment on appeal to the Division of Tax Appeals in the Department of Taxation and Finance of New Jersey. The Division's opinion recommending dismissal referred to the proceeding as "a personal property appeal." Its order of dismissal was reversed by the former New Jersey Supreme Court on writ of certiorari. 137 N. J. L. 444, 60 A. 2d 265. That court viewed the levy as an ad valorem tax on personalty; after concluding that the tax would be valid only if the bonds and interest were excluded from the computation, the court construed the tax statute as requiring such exclusion. This ruling was reversed by the Supreme Court of New Jersey as established under the present Constitution of the State. 1 N. J. 496, 64 A. 2d 341. The highest court of the state declared that the assessment was "against the intangible property" but "concluded that the tax levied ... is not an ad valorem tax or property tax but rather is a ... tax upon the net worth of the company." It held that such a tax, having been imposed without discrimination, was constitutionally permissible. From this decision the present appeal was taken. We noted probable jurisdiction, 28 U.S.C. 1257 (2).The assessment must fall as in conflict with 3701 of the Revised Statutes, providing that "All stocks, bonds, Treasury notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority." If we consider the assessment as a 15 per cent levy either against capital and surplus less liabilities or against entire net worth, we take as guides to our application of 3701 the decisions of this Court on the related constitutional question of immunity in Bank of Commerce v. New York City, 2 Black 620 (1863), and the Bank Tax Case, 2 Wall. 200 (1865), which considered assessments under state taxing provisions not substantially distinguishable from New Jersey's 54:4-22 as thus applied. The Bank of Commerce case involved an assessment levied upon the actual value of the capital stock, less the value of real estate, of a corporate taxpayer which had invested in United States securities all of its assets other than its realty. In holding the tax invalid as an interference with the federal borrowing power, the Court rejected the contention that the assessment should be sustained as a levy upon corporate capital represented by federal securities. In the Bank Tax Case this Court considered assessments levied against "the amount of ... capital stock paid in or secured to be paid in, and ... surplus earnings" of banking corporations which had invested all or a large part of their capital in government securities. As against the contention that this Court should regard as conclusive the state court's characterization of the tax as one laid on capital and surplus, it was held that the assessments were unconstitutional. The Court observed that"when the capital ... thus invested is made the basis of taxation of the institutions, there is great difficulty in saying that it is not the stock thus constituting the corpus or body of the capital that is taxed. It is not easy to separate the property in which the capital is invested from the capital itself... . The legislature ... when providing for a tax on ... capital at a valuation ... could not but have intended a tax upon the property in which the capital had been invested... . such is the practical effect of the tax ... ." 2 Wall. at 208-209. And in Bank v. Supervisors, 7 Wall. 26 (1869), it was held that certain issues of United States notes were exempt from assessment under the statute considered in the Bank Tax Case, supra, in view of a congressional provision, which foreshadowed 3701, that United States securities "shall be exempt from taxation by or under State authority." 12 Stat. 346. And see Framers Bank v. Minnesota, ; Home Savings Bank v. Des Moines, .It matters not whether the tax is, as appellee contends, an indirect or excise levy on net worth measured by corporate capital and surplus or is, as appellant urges, a tax on personal property based on a valuation gauged by capital and surplus. Our inquiry is narrowed to whether in practical operation and effect the tax is in part a tax upon federal bonds. We can only conclude that the tax authorized by 54:4-22, whether levied against capital and surplus less liabilities or against entire net worth, is imposed on such securities regardless of the accounting label employed in describing it.The court below, describing the tax as levied on net worth and indirectly on capital and surplus measured in part by tax-exempt property, held it valid on the authority of Tradesmens Nat. Bank v. Oklahoma Tax Comm'n, , and Educational Films Corp. v. Ward, . The decision in the Tradesmens Bank case does not bear upon the present controversy. There the Court upheld a state tax statute adopted pursuant to an act of Congress authorizing state taxation of national banks. Moreover, the tax there considered, as well as that under scrutiny in the Educational Films Corp. case, was not measured in effect by the amount of the taxpayer's federal securities or interest but was a franchise tax measured by net income.6 The section here in question was not considered as imposing a tax on privilege or franchise by either the New Jersey Legislature7 or the taxing officials8 or by any of the courts below.9 While we are not limited by the State's characterization of its tax, cf. Wisconsin v. J. C. Penney Co., , we likewise do not think the assessment can be sustained as one levied on a corporate franchise. In considering the similar tax on capital and earned surplus under review in the Bank Tax Case, supra, this Court declared that the levy was "imposed on the property of the institutions, as contradistinguished from a tax upon their privileges or franchises." 2 Wall. at 209.If the assessment is considered to be 15 per cent of capital and surplus less liabilities or of entire net worth, we agree with the court below that the tax levied under 54:4-22 does not impose a discriminatory burden on federal issues as did the tax statute against which 3701 was invoked in Missouri Ins. Co. v. Gehner, . But since the decision in Bank of Commerce v. New York City, supra, it has been understood that a tax on corporate capital measured by federal securities may be invalid even though imposed without discrimination against federal obligations.If, however, the assessment of $75,700 is viewed as if it were levied exclusively upon appellant's net worth remaining after deduction of government bonds and interest, the assessment would be discriminatory since it would be levied at the rate of over 79 per cent of appellant's assessable valuation of $94,936.87 rather than at the rate of 15 per cent prescribed by 54:4-22. Such increased rate of assessment would result solely from appellant's ownership of federal issues. In the Gehner case, supra, this Court held that 3701 was offended by a computation which allowed deduction of the full amount of the taxpayer's federal bonds yet at the same time pared down the net value of other allowable exemptions, to the taxpayer's disadvantage, solely because of such ownership of federal bonds. Consistently with the Gehner decision, we can only hold that 3701 is violated by an automatic increase in the rate of assessment applied to appellant's valuation after deduction of federal bonds.The result which is thus indicated is also required by the legislative purpose, which we have found in 3701, "to prevent taxes which diminish in the slightest degree the market value or the investment attractiveness of obligations issued by the United States in an effort to secure necessary credit." Smith v. Davis, .The legislative purpose of 3701 also required the exemption from assessment under 54:4-22 of interest on federal securities which had accrued but was not yet paid. Cf. Hibernia Savings & Loan Society v. San Francisco, . Congress on occasion has expressly declared an exemption from state taxation of interest on federal securities,10 and we do not find a contrary purpose disclosed by the omission from 3701 of the phrase "and interest thereon."The assessment for tax under 54:4-22 of the New Jersey Revised Statutes as levied is in conflict with the paramount provision of 3701 of the Revised Statutes. The decision of the Supreme Court of New Jersey is Reversed.MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. |
0 | During jury selection in respondent Ayala's murder trial, Ayala, who is Hispanic, objected that seven of the prosecution's peremptory challenges were impermissibly race-based under Batson v. Kentucky, 476 U. S. 79. The judge permitted the prosecution to disclose its reasons for the strikes outside the presence of the defense and concluded that the prosecution had valid, race-neutral reasons for the strikes. Ayala was eventually convicted and sentenced to death. On appeal, the California Supreme Court analyzed Ayala's challenge under both Batson and its state-law analogue, concluding that it was error, as a matter of state law, to exclude Ayala from the hearings. The court held, however, that the error was harmless under state law and that, if a federal error occurred, it too was harmless beyond a reasonable doubt under Chapman v. California, 386 U. S. 18. Ayala subsequently pressed his claims in federal court. There, the District Court held that even if the ex parte proceedings violated federal law, the state court's harmlessness finding could not be overturned because it was not contrary to or an unreasonable application of clearly established federal law under 28 U. S. C. §2254(d). A divided panel of the Ninth Circuit disagreed and granted Ayala habeas relief. The panel majority held that the ex parte proceedings violated Ayala's federal constitutional rights and that the error was not harmless under Brecht v. Abrahamson, 507 U. S. 619, as to at least three of the seven prospective jurors.Held: Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing was harmless. Pp. 9-29. (a) Even assuming that Ayala's federal rights were violated, he is entitled to habeas relief only if the prosecution cannot demonstrate harmlessness. Glebe v. Frost, 574 U. S. ___, ___. Under Brecht, federal habeas petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.' " 507 U. S., at 637. Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit thought, that a state court's harmlessness determination has no significance under Brecht. The Brecht standard subsumes the requirements that §2254(d) imposes when a federal habeas petitioner contests a state court's determination that a constitutional error was harmless under Chapman. Fry v. Pliler, 551 U. S. 112, 120. But Brecht did not abrogate the limitation on federal habeas relief that the Antiterrorism and Effective Death Penalty Act of 1996 plainly sets out. There is no dispute that the California Supreme Court held that any federal error was harmless under Chapman, and this decision was an "adjudication on the merits" of Ayala's claim. Accordingly, a federal court cannot grant Ayala relief unless the state court's rejection of his claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, or was based on an unreasonable determination of the facts. Pp. 9-12. (b) Any federal constitutional error was harmless with respect to all seven prospective jurors. Pp. 12-28. (1) The prosecution stated that it struck Olanders D., an African-American man, because it was concerned that he could not impose the death penalty and because of the poor quality of his responses. As the trial court and State Supreme Court found, the record amply supports the prosecution's concerns, and Ayala cannot establish that the ex parte hearing prejudiced him. The Ninth Circuit misunderstood the role of a federal court in a habeas case. That role is not to conduct de novo review of factual findings and substitute the federal court's own opinions for the determination made on the scene by the trial judge. Pp. 14-18. (2) The prosecution stated that it struck Gerardo O., a Hispanic man, because he had a poor grasp of English, his answers suggested an unwillingness to impose the death penalty, and he did not appear to get along with other jurors. Each of these reasons was amply supported by the record, and there is no basis for finding that the absence of defense counsel affected the trial judge's evaluation of the strike. Ayala cannot establish that the ex parte hearing actually prejudiced him or that no fairminded jurist could agree with the state court's application of Chapman. Once again, the Ninth Circuit's decision was based on a misapplication of basic rules regarding harmless error. The inquiry is not whether the federal habeas court could definitively say that the defense could make no winning arguments, but whether the evidence in the record raised "grave doubt[s]" about whether the trial judge would have ruled differently. O'Neal v. McAninch. That standard was not met in this case. Pp. 18-24. (3) The prosecution stated that it struck Robert M., a Hispanic man, because it was concerned that he could not impose the death penalty and because he had followed a controversial murder trial. Not only was the Ninth Circuit incorrect to suppose that the presence of Ayala's counsel at the hearing would have made a difference in the trial court's evaluation of the strike, but the Ninth Circuit failed to mention that defense counsel specifically addressed the issue during voir dire and reminded the judge that Robert M. also made several statements favorable to the death penalty. Thus, the trial judge heard counsel's arguments and concluded that the record supplied a legitimate basis for the prosecution's concern. That defense counsel did not have the opportunity to repeat that argument does not create grave doubt about whether the trial court would have decided the issue differently. Pp. 24-26. (4) With regard to Ayala's Batson objection about the four remaining prospective jurors who were struck, he does not come close to establishing "actual prejudice" under Brecht or that no fairminded jurist could agree with the California Supreme Court's decision that excluding counsel was harmless. Pp. 26-28.756 F. 3d 656, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Kagan, JJ., joined.Opinion of the Court 576 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1428RON DAVIS, ACTING WARDEN, PETITIONER v. HECTOR AYALAon writ of certiorari to the united states court of appeals for the ninth circuit[June 18, 2015] Justice Alito delivered the opinion of the Court. A quarter-century after a California jury convicted Hector Ayala of triple murder and sentenced him to death, the Court of Appeals for the Ninth Circuit granted Ayala's application for a writ of habeas corpus and ordered the State to retry or release him. The Ninth Circuit's decision was based on the procedure used by the trial judge in ruling on Ayala's objections under Batson v. Kentucky, 476 U. S. 79 (1986), to some of the prosecution's peremptory challenges of prospective jurors. The trial judge allowed the prosecutor to explain the basis for those strikes outside the presence of the defense so as not to disclose trial strategy. On direct appeal, the California Supreme Court found that if this procedure violated any federal constitutional right, the error was harmless beyond a reasonable doubt. The Ninth Circuit, however, held that the error was harmful. The Ninth Circuit's decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht v. Abrahamson, 507 U. S. 619 (1993), and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d).IA Ayala's conviction resulted from the attempted robbery of an automobile body shop in San Diego, California, in April 1985. The prosecution charged Ayala with three counts of murder, one count of attempted murder, one count of robbery, and three counts of attempted robbery. The prosecution also announced that it would seek the death penalty on the murder counts. Jury selection lasted more than three months, and during this time the court and the parties interviewed the prospective jurors and then called back a subset for general voir dire. As part of the jury selection process, more than 200 potential jurors completed a 77-question, 17-page questionnaire. Potential jurors were then questioned in court regarding their ability to follow the law. Jurors who were not dismissed for cause were called back in groups for voir dire, and the parties exercised their peremptory challenges. Each side was allowed 20 peremptories, and the prosecution used 18 of its allotment. It used seven peremptories to strike all of the African-Americans and Hispanics who were available for service. Ayala, who is Hispanic, raised Batson objections to those challenges. Ayala first objected after the prosecution peremptorily challenged two African-Americans, Olanders D. and Galileo S. The trial judge stated that these two strikes failed to establish a prima facie case of racial discrimination, but he nevertheless required the prosecution to reveal the reasons for the strikes. The prosecutor asked to do this outside the presence of the defense so as not to disclose trial strategy, and over Ayala's objection, the judge granted the request. The prosecution then offered several reasons for striking Olanders D., including uncertainty about his willingness to impose the death penalty. The prosecution stated that it dismissed Galileo S. primarily because he had been arrested numerous times and had not informed the court about all his prior arrests. After hearing and evaluating these explanations, the judge concluded that the prosecution had valid, race-neutral reasons for these strikes. Ayala again raised Batson objections when the prosecution used peremptory challenges to dismiss two Hispanics, Gerardo O. and Luis M. As before, the judge found that the defense had not made out a prima facie case, but ordered the prosecution to reveal the reasons for the strikes. This was again done ex parte, but this time the defense did not expressly object. The prosecution explained that it had challenged Gerardo O. and Luis M. in part because it was unsure that they could impose the death penalty. The prosecution also emphasized that Gerardo O.'s English proficiency was limited and that Luis M. had independently investigated the case. The trial court concluded a second time that the prosecution had legitimate race-neutral reasons for the strikes. Ayala raised Batson objections for a third and final time when the prosecution challenged Robert M., who was Hispanic; George S., whose ethnicity was disputed; and Barbara S., who was African-American. At this point, the trial court agreed that Ayala had made a prima facie Batson showing. Ayala's counsel argued that the strikes were in fact based on race. Ayala's counsel contended that the challenged jurors were "not significantly different from the white jurors that the prosecution ha[d] chosen to leave on the jury both in terms of their attitudes on the death penalty, their attitudes on the criminal justice system, and their attitudes on the presumption of innocence." App. 306. Ayala's counsel then reviewed the questionnaire answers and voir dire testimony of Barbara S. and Robert M., as well as the statements made by three of the prospective jurors who had been the subject of the prior Batson objections, Galileo S., Gerardo O., and Luis M. Counsel argued that their answers showed that they could impose the death penalty. The trial court stated that it would hear the prosecution's response outside the presence of the jury, and Ayala once more did not object to that ruling. The prosecution then explained that it had dismissed the prospective jurors in question for several race-neutral reasons, including uncertainty that Robert M., George S., or Barbara S. would be open to imposing the death penalty. The prosecution also emphasized (among other points) that Robert M. had followed a controversial trial, that George S. had been a holdout on a prior jury, and that Barbara S. had given the impression during voir dire that she was under the influence of drugs. The trial court concluded, for a third time, that the prosecution's peremptory challenges were based on race-neutral criteria. In August 1989, the jury convicted Ayala of all the charges except one of the three attempted robberies. With respect to the three murder convictions, the jury found two special circumstances: Ayala committed multiple murders, and he killed during the course of an attempted robbery. The jury returned a verdict of death on all three murder counts, and the trial court entered judgment consistent with that verdict.B Ayala appealed his conviction and sentence, and counsel was appointed to represent him in January 1993. Between 1993 and 1999, Ayala filed 20 applications for an extension of time, 11 of which requested additional time to file his opening brief. After the California Supreme Court eventually ruled that no further extensions would be granted, Ayala filed his opening brief in April 1998, nine years after he was convicted. The State filed its brief in September 1998, and Ayala then asked for four extensions of time to file his reply brief. After the court declared that it would grant him no further extensions, he filed his reply brief in May 1999. In August 2000, the California Supreme Court affirmed Ayala's conviction and death sentence. People v. Ayala, 24 Cal. 4th 243, 6 P. 3d 193. In an opinion joined by five justices, the State Supreme Court rejected Ayala's contention that the trial court committed reversible error by excluding the defense from part of the Batson hearing. The court understood Ayala to challenge the peremptory strikes under both Batson and its state-law analogue, People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978). The court first concluded that the prosecution had not offered matters of trial strategy at the ex parte hearing and that, "as a matter of state law, it was [error]" to bar Ayala's attorney from the hearing. 24 Cal. 4th, at 262, 6 P. 3d, at 203. Turning to the question of prejudice, the court stated:"We have concluded that error occurred under state law, and we have noted [the suggestion in United States v. Thompson, 827 F. 2d 1254 (CA9 1987),] that excluding the defense from a Wheeler-type hearing may amount to a denial of due process. We nonetheless conclude that the error was harmless under state law (People v. Watson (1956) 46 Cal.2d 818, 836), and that, if federal error occurred, it, too, was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U. S. 18, 24) as a matter of federal law. On the record before us, we are confident that the challenged jurors were excluded for proper, race-neutral reasons." Id., at 264, 6 P. 3d, at 204.The court then reviewed the prosecution's reasons for striking the seven prospective jurors and found that "[o]n this well-developed record, . . . we are confident that defense counsel could not have argued anything substantial that would have changed the court's rulings. Accordingly, the error was harmless." Id., at 268, 6 P. 3d, at 207. The court concluded that the record supported the trial judge's implicit determination that the prosecution's justifications were not fabricated and were instead "grounded in fact." Id., at 267, 6 P. 3d, at 206. And the court emphasized that the "trial court's rulings in the ex parte hearing indisputably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical assessment of the prosecutor's proffered justifications." Id., at 266-267, 6 P. 3d, at 206. The California Supreme Court also rejected Ayala's argument that his conviction should be vacated because most of the questionnaires filled out by prospective jurors who did not serve had been lost at some point during the decade that had passed since the end of the trial. The court wrote that "the record is sufficiently complete for us to be able to conclude that [the prospective jurors who were the subject of the contested peremptories] were not challenged and excused on the basis of forbidden group bias." Id., at 270, 6 P. 3d, at 208. And even if the loss of the questionnaires was error under federal or state law, the court held, the error was harmless under Chapman and its state-law analogue. Two justices of the State Supreme Court dissented. We then denied certiorari. 532 U. S. 1029 (2001).C After the California Supreme Court summarily denied a habeas petition, Ayala turned to federal court. He filed his initial federal habeas petition in 2002, but then went back to state court to exhaust several claims. In December 2004, he filed the operative federal petition and argued, among other things, that the ex parte hearings and loss of the questionnaires violated his rights under the Sixth, Eighth, and Fourteenth Amendments. In 2006, the District Court denied Ayala relief on those claims. The District Court read the decision of the California Supreme Court to mean that the state court had not decided whether the ex parte proceedings violated federal law, and the District Court expressed doubt "whether the trial court's procedure was constitutionally defective as a matter of clearly established Federal law." App. to Pet. for Cert. 145a. But even if such a violation occurred, the District Court held, the state court's finding of harmlessness was not contrary to or an unreasonable application of clearly established law and thus could not be overturned under AEDPA. The District Court also rejected Ayala's argument about the lost questionnaires, concluding that, even without them, the record was sufficient to resolve Ayala's other claims. In 2013, a divided panel of the Ninth Circuit granted Ayala federal habeas corpus relief and required California either to release or retry him. Ayala v. Wong, 756 F. 3d 656 (2014). Because Ayala's federal petition is subject to the requirements of AEDPA, the panel majority began its analysis by inquiring whether the state court had adjudicated Ayala's claims on the merits. Applying de novo review,1 the panel held that the ex parte proceedings violated the Federal Constitution, and that the loss of the questionnaires violated Ayala's federal due process rights if that loss deprived him of "the ability to meaningfully appeal the denial of his Batson claim." Id., at 671. The panel folded this inquiry into its analysis of the question whether the error regarding the ex parte proceedings was harmless. Turning to the question of harmlessness, the panel identified the applicable standard of review as that set out in Brecht and added: "We apply the Brecht test without regard for the state court's harmlessness determination." 756 F. 3d, at 674 (internal quotation marks omitted).2 The panel used the following complicated formulation to express its understanding of Brecht's application to Ayala's claims: "If we cannot say that the exclusion of defense counsel with or without the loss of the questionnaires likely did not prevent Ayala from prevailing on his Batson claim, then we must grant the writ." 756 F. 3d, at 676. Applying this test, the panel majority found that the error was not harmless, at least with respect to three of the seven prospective jurors. The panel asserted that the absence of Ayala and his counsel had interfered with the trial court's ability to evaluate the prosecution's proffered justifications for those strikes and had impeded appellate review, and that the loss of the questionnaires had compounded this impairment. Judge Callahan dissented. She explained that the California Supreme Court's decision that any federal error was harmless constituted a merits adjudication of Ayala's federal claims. She then reviewed the prosecution's explanations for its contested peremptory challenges and concluded that federal habeas relief was barred because "fairminded jurists can concur in the California Supreme Court's determination of harmless error." Id., at 706. The Ninth Circuit denied rehearing en banc, but Judge Ikuta wrote a dissent from denial that was joined by seven other judges. Like Judge Callahan, Judge Ikuta concluded that the California Supreme Court adjudicated the merits of Ayala's federal claims. Instead of the panel's "de novo review of the record that piles speculation upon speculation," she would have found that the state court's harmlessness determination was not an unreasonable application of Chapman. 756 F. 3d, at 723. We granted certiorari. 574 U. S. ___ (2014).II Ayala contends that his federal constitutional rights were violated when the trial court heard the prosecution's justifications for its strikes outside the presence of the defense, but we find it unnecessary to decide that question. We assume for the sake of argument that Ayala's federal rights were violated, but that does not necessarily mean that he is entitled to habeas relief. In the absence of "the rare type of error" that requires automatic reversal, relief is appropriate only if the prosecution cannot demonstrate harmlessness. Glebe v. Frost, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 3). The Ninth Circuit did not hold — and Ayala does not now contend — that the error here falls into that narrow category, and therefore Ayala is entitled to relief only if the error was not harmless. The test for whether a federal constitutional error was harmless depends on the procedural posture of the case. On direct appeal, the harmlessness standard is the one prescribed in Chapman, 386 U. S. 18: "[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id., at 24. In a collateral proceeding, the test is different. For reasons of finality, comity, and federalism, habeas petitioners "are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.' " Brecht, 507 U. S., at 637 (quoting United States v. Lane, 474 U. S. 438, 449 (1986)). Under this test, relief is proper only if the federal court has "grave doubt about whether a trial error of federal law had 'substantial and injurious effect or influence in determining the jury's verdict.' " O'Neal v. McAninch, 513 U. S. 432, 436 (1995). There must be more than a "reasonable possibility" that the error was harmful. Brecht, supra, at 637 (internal quotation marks omitted). The Brecht standard reflects the view that a "State is not to be put to th[e] arduous task [of retrying a defendant] based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error." Calderon v. Coleman, 525 U. S. 141, 146 (1998) (per curiam). Because Ayala seeks federal habeas corpus relief, he must meet the Brecht standard, but that does not mean, as the Ninth Circuit thought, that a state court's harmlessness determination has no significance under Brecht. In Fry v. Pliler, 551 U. S. 112, 120 (2007), we held that the Brecht standard "subsumes" the requirements that §2254(d) imposes when a federal habeas petitioner contests a state court's determination that a constitutional error was harmless under Chapman. The Fry Court did not hold — and would have had no possible basis for holding — that Brecht somehow abrogates the limitation on federal habeas relief that §2254(d) plainly sets out. While a federal habeas court need not "formal[ly]" apply both Brecht and "AEDPA/Chapman," AEDPA nevertheless "sets forth a precondition to the grant of habeas relief." Fry, supra, at 119-120. Under AEDPA, 28 U. S. C. §2254(d):"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or"(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."Section 2254(d) thus demands an inquiry into whether a prisoner's "claim" has been "adjudicated on the merits" in state court; if it has, AEDPA's highly deferential standards kick in. Harrington v. Richter, 562 U. S. 86, 103 (2011). At issue here is Ayala's claim that the ex parte portion of the Batson hearings violated the Federal Constitution. There is no dispute that the California Supreme Court held that any federal error was harmless beyond a reasonable doubt under Chapman, and this decision undoubtedly constitutes an adjudication of Ayala's constitutional claim "on the merits." See, e.g., Mitchell v. Esparza, 540 U. S. 12, 17-18 (2003) (per curiam). Accordingly, a federal habeas court cannot grant Ayala relief unless the state court's rejection of his claim (1) was contrary to or involved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts. Because the highly deferential AEDPA standard applies, we may not overturn the California Supreme Court's decision unless that court applied Chapman "in an 'objectively unreasonable' manner." Id., at 18 (quoting Lockyer v. Andrade, 538 U. S. 63, 75 (2003)). When a Chapman decision is reviewed under AEDPA, "a federal court may not award habeas relief under §2254 unless the harmlessness determination itself was unreasonable." Fry, supra, at 119 (emphasis in original). And a state-court decision is not unreasonable if " 'fairminded jurists could disagree' on [its] correctness." Richter, supra, at 101 (quoting Yarborough v. Alvarado, 541 U. S. 652, 664 (2004)). Ayala therefore must show that the state court's decision to reject his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." 562 U. S., at 103. In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA. Fry, supra, at 119-120.III With this background in mind, we turn to the question whether Ayala was harmed by the trial court's decision to receive the prosecution's explanation for its challenged strikes without the defense present. In order for this argument to succeed, Ayala must show that he was actually prejudiced by this procedure, a standard that he necessarily cannot satisfy if a fairminded jurist could agree with the California Supreme Court's decision that this procedure met the Chapman standard of harmlessness. Evaluation of these questions requires consideration of the trial court's grounds for rejecting Ayala's Batson challenges.A Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race. 476 U. S., at 89. When adjudicating a Batson claim, trial courts follow a three-step process: "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination." Snyder v. Louisiana, 552 U. S. 472, 476-477 (2008) (internal quotation marks and alterations omitted).The opponent of the strike bears the burden of persuasion regarding racial motivation, Purkett v. Elem, 514 U. S. 765, 768 (1995) (per curiam), and a trial court finding regarding the credibility of an attorney's explanation of the ground for a peremptory challenge is "entitled to 'great deference,' " Felkner v. Jackson, 562 U. S. 594, 598 (2011) (per curiam) (quoting Batson, 476 U. S., at 98, n. 21). On direct appeal, those findings may be reversed only if the trial judge is shown to have committed clear error. Rice v. Collins, 546 U. S. 333, 338 (2006). Under AEDPA, even more must be shown. A federal habeas court must accept a state-court finding unless it was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." §2254(d)(2). "State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.' " Collins, supra, at 338-339 (quoting §2254(e)(1)). In this case, Ayala challenged seven of the prosecution's peremptory challenges. As explained above, the Ninth Circuit granted relief based on the dismissal of three potential jurors. The dissent discusses only one, Olanders D. We will devote most of our analysis to the three individuals discussed by the Ninth Circuit, but we hold that any error was harmless with respect to all seven strikes.B1 Ayala first contests the prosecution's decision to challenge Olanders D., an African-American man. The prosecution stated that its "primary" reason for striking Olanders D. was uncertainty about whether he could impose the death penalty, and the prosecutor noted that Olanders D. had written on his questionnaire that he did not "believe in the death penalty." 50 Reporter's Tr. on Appeal 6185 (hereinafter Tr.). Providing additional reasons for this strike, the prosecutor first stated that Olanders D.'s responses "did not make a lot of sense," "were not thought out," and "demonstrate[d] a lack of ability to express himself well." App. 283. The prosecutor also voiced doubt that Olanders D. "could actively participate in a meaningful way in deliberations with other jurors" and might have lacked the "ability to fit in with a cohesive group of 12 people." Ibid. The trial court concluded that the strike was race-neutral. The judge stated: "Certainly with reference to whether or not he would get along with 12 people, it may well be that he would get along very well with 12 people. I think the other observations of counsel are accurate and borne out by the record." 50 Tr. 6186. The California Supreme Court found that the evidence of Olanders D.'s views on the death penalty provided adequate support for the trial judge's finding that the strike exercised against him was not based on race, and the court further found that defense counsel's presence would not have affected the outcome of the Batson hearing. The Ninth Circuit reversed, but its decision rested on a misapplication of the applicable harmless-error standards.2 As the trial court and the State Supreme Court found, Olanders D.'s voir dire responses amply support the prosecution's concern that he might not have been willing to impose the death penalty. During voir dire, Olanders D. acknowledged that he wrote on his questionnaire, " 'I don't believe in the death penalty,' " App. 179, and he agreed that he had at one time "thought that [the death penalty] was completely wrong," id., at 177. Although he stated during the voir dire that he had reconsidered his views, it was reasonable for the prosecution and the trial court to find that he did not clearly or adequately explain the reason or reasons for this change. When asked about this, Olanders D. gave a vague and rambling reply: "Well, I think it's — one thing would be the — the — I mean, examining it more closely, I think, and becoming more familiar with the laws and the — and the behavior, I mean, the change in the people, I think. All of those things contributed to the changes." Id., at 178. The Ninth Circuit reversed because it speculated that defense counsel, if present when the prosecution explained the basis for this strike, "could have pointed to seated white jurors who had expressed similar or greater hesitancy" in imposing the death penalty. 756 F. 3d, at 678. The Ninth Circuit wrote that a seated white juror named Ana L. was "indistinguishable from Olanders D. in this regard" and that she had "made almost precisely the same statement in her questionnaire." Ibid. The responses of Olanders D. and Ana L., however, were by no means "indistinguishable." Olanders D. initially voiced unequivocal opposition to the death penalty, stating flatly: "I don't believe in the death penalty." He also revealed that he had once thought it was "completely wrong." Ana L., by contrast, wrote on the questionnaire that she "probably would not be able to vote for the death penalty," App. 109 (emphasis added), and she then later said at voir dire that she could vote for a verdict of death. In a capital case, it is not surprising for prospective jurors to express varying degrees of hesitancy about voting for a death verdict. Few are likely to have experienced a need to make a comparable decision at any prior time in their lives. As a result, both the prosecution and the defense may be required to make fine judgment calls about which jurors are more or less willing to vote for the ultimate punishment. These judgment calls may involve a comparison of responses that differ in only nuanced respects, as well as a sensitive assessment of jurors' demeanor. We have previously recognized that peremptory challenges "are often the subjects of instinct," Miller-El v. Dretke, 545 U. S. 231, 252 (2005) (citing Batson, 476 U. S., at 106 (Marshall, J., concurring)), and that "race-neutral reasons for peremptory challenges often invoke a juror's demeanor," Snyder, 552 U. S., at 477. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, "these determinations of credibility and demeanor lie peculiarly within a trial judge's province," and "in the absence of exceptional circumstances, we [will] defer to the trial court." Ibid. (alterations and internal quotation marks omitted). "Appellate judges cannot on the basis of a cold record easily second-guess a trial judge's decision about likely motivation." Collins, 546 U. S., at 343 (Breyer, J., concurring). The upshot is that even if "[r]easonable minds reviewing the record might disagree about the prosecutor's credibility, . . . on habeas review that does not suffice to supersede the trial court's credibility determination." Id., at 341-342 (majority opinion). Here, any similarity between the responses of Olanders D. and Ana L. is insufficient to compel an inference of racial discrimination under Brecht or AEDPA. Ayala contends that the presence of defense counsel might have made a difference because defense counsel might have been able to identify white jurors who were not stricken by the prosecution even though they had "expressed similar or greater hesitancy" about the death penalty. We see no basis for this argument. The questionnaires of all the jurors who sat and all the alternates are in the record, and Ana L., whom we just discussed, is apparently the white juror whose answers come the closest to those of Olanders D. Since neither Ayala nor the Ninth Circuit identified a white juror whose statements better support their argument, there is no reason to think that defense counsel could have pointed to a superior comparator at the ex parte proceeding.3 In rejecting the argument that the prosecutor peremptorily challenged Olanders D. because of his race, the California Supreme Court appears to have interpreted the prosecutor's explanation of this strike to mean that Olanders D.'s views on the death penalty were alone sufficient to convince him to exercise a strike, see 24 Cal. 4th, at 266, 6 P. 3d, at 206, and this was certainly an interpretation of the record that must be sustained under 28 U. S. C. §2254(d)(2). As a result, it is not necessary for us to consider the prosecutor's supplementary reason for this strike — the poor quality of Olanders D.'s responses — but in any event, the Ninth Circuit's evaluation of this reason is also flawed. The Ninth Circuit wrote that its independent "review of the voir dire transcript reveal[ed] nothing that supports the prosecution's claim: Olanders D.'s answers were responsive and complete." 756 F. 3d, at 679. The record, however, provides sufficient support for the trial court's determination. Olanders D.'s incoherent explanation during voir dire of the reasons for his change of opinion about the death penalty was quoted above. He also provided a chronology of the evolution of his views on the subject that did not hold together. He stated that he had been "completely against the death sentence" 10 years earlier but seemed to suggest that his views had changed over the course of the intervening decade. See App. 176-177. However, on the questionnaire, which he had completed just a month before the voir dire, he wrote unequivocally: "I don't believe in the death penalty." Id., at 179. And then, at the time of the voir dire, he said that he would be willing to impose the death penalty in some cases. Id., at 180. He explained his answer on the questionnaire as follows: "I answered that kind of fast[.] [N]ormally, I wouldn't answer that question that way, but I mean, I really went through that kind of fast. I should have done better than that." Id., at 179-180. These answers during voir dire provide more than sufficient support for the prosecutor's observation, which the trial court implicitly credited, that Olanders D.'s statements "did not make a lot of sense," "were not thought out," and "demonstrate[d] a lack of ability to express himself well." In ordering federal habeas relief based on their assessment of the responsiveness and completeness of Olanders D.'s answers, the members of the panel majority misunderstood the role of a federal court in a habeas case. The role of a federal habeas court is to " 'guard against extreme malfunctions in the state criminal justice systems,' " Richter, 562 U. S., at 102-103 (quoting Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)), not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.C Ayala next challenges the prosecution's use of a peremptory challenge to strike Gerardo O., a Hispanic man. The prosecution offered three reasons for this strike: Gerardo O. had a poor grasp of English; his answers during voir dire and on his questionnaire suggested that he might not be willing to impose the death penalty; and he did not appear to get along with the other prospective jurors. The trial judge accepted this explanation, as did the State Supreme Court. The Ninth Circuit, however, rejected the state courts' determinations based on speculation that defense counsel, if present at the in camera hearing, "likely could have called into question all of the prosecution's stated reasons for striking Gerardo O." 756 F. 3d, at 680. The Ninth Circuit thought that it could grant Ayala relief simply because it "[could not] say that Ayala would not have shown that the trial court would or should have determined that the prosecution's strike of Gerardo O. violated Batson." Id., at 682. But that is not the test. The inquiry under Brecht is not whether the federal habeas court could definitively say that there were no winning arguments that the defense could have made. Instead, the evidence in the record must raise "grave doubt[s]" about whether the trial judge would have ruled differently. O'Neal, 513 U. S., at 436. This requires much more than a "reasonable possibility" that the result of the hearing would have been different. Brecht, 507 U. S., at 637 (internal quotation marks omitted). And on the record in this case, Ayala cannot establish actual prejudice or that no fairminded jurist could agree with the state court's application of Chapman. We begin with the prosecution's explanation that it challenged Gerardo O. because of his limited English proficiency. During voir dire, Gerardo O. acknowledged that someone else had written the answers for him on his questionnaire "[b]ecause I couldn't — I cannot read — I cannot spell that well." App. 163. He added that he "didn't get" some of the words on the questionnaire. Ibid. Gerardo O.'s testimony also revealed that he might well have been unable to follow what was said at trial. When asked whether he could understand spoken English, he responded: "It depends if you make long words. If you make — if you go — if you say it straight out, then I might understand. If you beat around the bush, I won't." Id., at 166. At that point, defense counsel and Gerardo O. engaged in a colloquy that suggests that defense counsel recognized that he lacked the ability to understand words not used in basic everyday speech, "legal words," and rapid speech in English: "Q: I'll try not to talk — use any legal words or lawyer talk-- "A: Okay. "Q: --and talk regular with you. If you don't understand anything I say, stop me and tell me, okay? "A: Okay. "Q: If you're selected as a juror during the trial, and you know you're serving as a juror and listening to witnesses, can we have your promise that if a witness uses a word you don't understand, you'll put your hand up and let us know? "A: Yeah.. . . . . "Q: There's one more problem that you're going to have with me, and that is that sometimes . . . I talk real fast . . . ." Id., at 166-167. It is understandable for a prosecutor to strike a potential juror who might have difficulty understanding English.3 The jurors who were ultimately selected heard many days of testimony, and the instructions at both the guilt and the penalty phases included "legal words" and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained Gerardo O.'s linguistic capability. The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that Gerardo O.'s English-language deficiencies were limited to reading and writing, 756 F. 3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited. The Ninth Circuit then suggested that "[t]he prosecution's purported reason for striking Gerardo O. . . . was directly related to his status as someone who spoke Spanish as his first language," ibid., but the prosecutor voiced no concern about Gerardo O.'s ability to speak Spanish or about the fact that Spanish was his first language. The prosecution's objection concerned Gerardo O.'s limited proficiency in English. The Ninth Circuit quoted the following statement from Hernandez v. New York, 500 U. S. 352, 363 (1991) (plurality opinion): " '[T]he prosecutor's frank admission that his ground for excusing th[is] juror[ ] related to [his] ability to speak and understand Spanish raised a plausible, though not a necessary, inference that language might be a pretext for what in fact [was a] race-based peremptory challenge[ ].' " 756 F. 3d, at 680 (alterations in original). This statement, however, did not concern a peremptory exercised due to a prospective juror's lack of English proficiency. Instead, it concerned the dismissal of Spanish-speaking members of the venire for fear that, if seated, they might not follow the English translation of testimony given in Spanish. See 500 U. S., at 360. The Ninth Circuit's decision regarding Gerardo O. was thus based on a misreading of the record and a distortion of our case law. And neither Ayala nor the Ninth Circuit has identified anything that defense counsel might have done at the ex parte hearing to show that the prosecutor's concern about Gerardo O.'s limited English proficiency was pretextual. The prosecution's second proffered reason for striking Gerardo O. was concern about his willingness to impose the death penalty, and as the trial court found, this observation was also supported by the record. Indeed, when asked in voir dire how he felt about imposing the death penalty, Gerardo O. responded that he was "[k]ind of shaky about it. . . . I'm not too sure if I can take someone else's life in my hands and say that; say, you know, 'death,' or something." App. 168. In response to another question about his thoughts on the death penalty, he replied: "I don't know yet. It's kind of hard, you know, to pick it up like that and say how I feel about the death penalty." 15 Tr. 1052. Answering a question about whether his thoughts on the death penalty would affect how he viewed the evidence presented at trial, he responded, "I don't know, sir, to tell you the truth." App. 165. And when asked if he had "any feeling that [he] would be unable to vote for the death penalty if [he] thought it was a case that called for it," Gerardo O. responded once again, "I don't know." 15 Tr. 1043. While Gerardo O. did say at one point that he might be willing to impose the death penalty, he qualified that statement by adding that he would be comforted by the fact that "there's eleven more other persons on the jury." App. 170. What we said above regarding jurors who express doubts about their openness to a death verdict applies as well here. The prosecution's reluctance to take a chance that Gerardo O. would ultimately be willing to consider the death penalty in accordance with state law did not compel the trial judge to find that the strike of Gerardo O. was based on race. Nor is there a basis for finding that the absence of defense counsel affected the trial judge's evaluation of the sincerity of this proffered ground for the strike. Defense counsel had a full opportunity during voir dire to create a record regarding Gerardo O.'s openness to the death penalty. And defense counsel had the opportunity prior to the ex parte proceeding on the Gerardo O. strike to compare the minority jurors dismissed by the prosecution with white jurors who were seated. Counsel argued that the answers on the death penalty given by the minority jurors were "not significantly different from [those of] the white jurors that the prosecution ha[d] chosen to leave on the jury." Id., at 306. The trial judge asked counsel for "particulars," and counsel discussed Gerardo O., albeit briefly. Id., at 307-308. Thus, there is no reason to believe that counsel could have made a more persuasive argument at the ex parte proceeding than he made during this exchange. The prosecution's final reason for striking Gerardo O. was that he appeared to be "a standoffish type of individual" whose "dress and . . . mannerisms . . . were not in keeping with the other jurors" and who "did not appear to be socializing or mixing with any of the other jurors." Id., at 298. The trial judge did not dispute that the prosecution's reflections were borne out by the record. The California Supreme Court affirmed and also emphasized that "the trial court's rulings in the ex parte hearing indisputably reflect both its familiarity with the record of voir dire of the challenged prospective jurors and its critical assessment of the prosecutor's proffered justifications." 24 Cal. 4th, at 266-267, 6 P. 3d, at 206. In light of the strength of the prosecution's first two reasons for striking Gerardo O., it is not at all clear that the prosecution proffered this final reason as an essential factor in its decision to strike, but in any event, there is no support for the suggestion that Ayala's attorney, if allowed to attend the ex parte hearing, would have been able to convince the judge that this reason was pretextual. The Ninth Circuit, however, was content to speculate about what might have been. Mixing guesswork with armchair sociology, the Ninth Circuit mused that "[i]t is likely that Gerardo O.'s dress and mannerisms were distinctly Hispanic. Perhaps in the late 1980's Hispanic males in San Diego County were more likely than members of other racial or ethnic groups in the area to wear a particular style or color of shirt, and Gerardo O. was wearing such a shirt." 756 F. 3d, at 680-681. As for the prosecution's observation that Gerardo O. did not socialize with other jurors, the Ninth Circuit posited that, "perhaps, unbeknownst to the trial judge, Gerardo O. did 'socializ[e] or mix[ ]' with a number of other jurors, and had even organized a dinner for some of them at his favorite Mexican restaurant." Id., at 681. This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit's flight of fancy. Brecht requires more than speculation about what extrarecord information defense counsel might have mentioned. And speculation of that type is not enough to show that a State Supreme Court's rejection of the argument regarding Gerardo O. was unreasonable.D The final prospective juror specifically discussed in the Ninth Circuit's decision was Robert M., who is Hispanic. The prosecution's primary proffered reason for striking Robert M. was concern that he would not impose the death penalty, though the prosecution added that it was troubled that he had followed the Sagon Penn case, a high-profile prosecution in San Diego in which an alleged murderer was acquitted amid allegations of misconduct by police and prosecutors. In addition, the prosecution also explained to the trial court that Robert M. scored poorly on its 10-point scale for evaluating prospective jurors. The trial court accepted the prosecutor's explanation of the strike. With respect to the prosecution's concern that Robert M. might not be willing to impose the death penalty, the Ninth Circuit found that defense counsel, if permitted to attend the in camera proceeding, could have compared Robert M.'s statements about the death penalty to those of other jurors and could have reminded the judge that Robert M. had "repeatedly stated during voir dire that he believed in the death penalty and could personally vote to impose it." 756 F. 3d, at 682. But as with Olanders D. and Gerardo O., we cannot say that the prosecution had no basis for doubting Robert M.'s willingness to impose the death penalty. For example, when asked at one point whether he could vote for death, Robert M. responded: "Well, I've though[t] about that, but it's a difficult question, and yeah, it is difficult for me to say, you know, one way or the other. I believe in it, but for me to be involved in it is — is hard. It's hard to accept that aspect of it, do you know what I mean?" App. 149-150. In response to another question, he said: "It would be hard, but I think I could, yes. It's — it's hard to say, you know — and I don't care who the person is — to say that they have to put somebody away, you know. It's very hard." Id., at 154. These are hardly answers that would inspire confidence in the minds of prosecutors in a capital case. While the Ninth Circuit argued that defense counsel's absence at the in camera hearing prejudiced the trial judge's ability to assess this reason for the strike of Robert M., the Ninth Circuit failed to mention that defense counsel specifically addressed this issue during voir dire. At that time, he pointedly reminded the judge that Robert M. had made several statements during voir dire that were favorable to the death penalty. Id., at 307. The trial judge thus heard defense counsel's arguments but nevertheless concluded that the record supplied a basis for a legitimate concern about whether Robert M. could impose the death penalty. That Ayala's attorney did not have the opportunity to repeat this same argument once more at the in camera proceeding does not create grave doubt about whether the trial court would have decided the issue differently. As for the prosecution's second proffered reason for striking Robert M.--that he had followed the Sagon Penn case4 — the Ninth Circuit placed great emphasis on the fact that a seated white juror had followed a different murder trial, that of Robert Alton Harris.5 But the Penn and Harris cases were quite different. Harris was convicted while Penn was acquitted; and since the Harris case was much older, the experience of following it was less likely to have an effect at the time of the trial in this case.E Ayala raised a Batson objection about the prosecution's use of peremptory challenges on four additional jurors, George S., Barbara S., Galileo S., and Luis M. The Ninth Circuit did not address these prospective jurors at length, and we need not dwell long on them. With respect to all four of these prospective jurors, we conclude that any constitutional error was harmless. Of these four additional jurors, Ayala's brief in this Court develops an argument with respect to only two, George S. and Barbara S. And while Ayala's attorney claimed that George S. was Hispanic, the prosecutor said that he thought that George S. was Greek. In any event, the prosecution offered several reasons for striking George S. The prosecutor noted that one of his responses "was essentially, 'you probably don't want me to be a juror on this case.' " Id., at 312. The prosecutor was also concerned about whether he would vote for death or even a life sentence and whether he would follow the law as opposed to his personal religious beliefs. In addition, the prosecutor noted that George S. had previously been the sole holdout on a jury and that his prior application to be a police officer had been rejected, for reasons that were not clear. The trial court accepted these explanations. Ayala contests only two of these justifications. He quibbles that George S. had not been a " 'holdout,' " but instead had been the dissenting juror in a civil case on which unanimity was not required. This observation does not render the prosecution's proffered justification "false or pretextual." Brief for Respondent 46. The fact that George S. had been willing to dissent from a jury verdict could reasonably give a prosecutor pause in a capital case since a single holdout juror could prevent a guilty verdict or death sentence. The most that Ayala can establish is that reasonable minds can disagree about whether the prosecution's fears were well founded, but this does not come close to establishing "actual prejudice" under Brecht. Nor does it meet the AEDPA standard. Ayala also points out that a seated white juror, Charles C., had been rejected by a police force, but George S. admitted that he had applied to law enforcement because he was "trying to get out of the Army," App. 222, and the reasons for his rejection were not clear. Charles C., by contrast, had received a qualifying score on a law enforcement exam but was not hired because a position was not available. As for Barbara S., the prosecution struck her because, during voir dire, she appeared to be "under the influence of drugs" and disconnected from the proceedings. Id., at 314. The prosecution emphasized that she had "an empty look in her eyes, slow responses, a lack of really being totally in tune with what was going on." Ibid. It added that she appeared "somewhat angry," "manifest[ed] a great deal of nervousness," and seemed like someone who would be unlikely to closely follow the trial. Ibid. The trial judge thought that Barbara S. appeared nervous rather than hostile, but he agreed that she gave incomplete answers that were sometimes "non sequiturs." Id., at 315. He concluded, "I certainly cannot quarrel . . . with your subjective impression, and the use of your peremptory challenge based upon her individual manifestation, as opposed to her ethnicity." Ibid. Ayala points to the trial court's disagreement with the prosecutor's impression that Barbara S. was hostile, but this ruling illustrates the trial judge's recollection of the demeanor of the prospective jurors and his careful evaluation of each of the prosecutor's proffered reasons for strikes. And the fact that the trial judge's impression of Barbara S.'s demeanor was somewhat different from the prosecutor's hardly shows that the prosecutor's reasons were pretextual. It is not at all unusual for individuals to come to different conclusions in attempting to read another person's attitude or mood.IV The pattern of peremptory challenges in this case was sufficient to raise suspicions about the prosecution's motives and to call for the prosecution to explain its strikes. As we have held, the Fourteenth Amendment prohibits a prosecutor from striking potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons public confidence in the evenhanded administration of justice. In Batson, this Court adopted a procedure for ferreting out discrimination in the exercise of peremptory challenges, and this procedure places great responsibility in the hands of the trial judge, who is in the best position to determine whether a peremptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors. In this case, the conscientious trial judge determined that the strikes at issue were not based on race, and his judgment was entitled to great weight. On appeal, five justices of the California Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had rendered a decision with which no fairminded jurist could agree. For the reasons explained above, it was the Ninth Circuit that erred. The exclusion of Ayala's attorney from part of the Batson hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice, and the decision of the California Supreme Court represented an entirely reasonable application of controlling precedent.* * * The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Kennedy, J., concurring 576 U. S. ____ (2015)No. 13-1428RON DAVIS, ACTING WARDEN, PETITIONER v. HECTOR AYALAon writ of certiorari to the united states court of appeals for the ninth circuit[June 18, 2015] Justice Kennedy, concurring. My join in the Court's opinion is unqualified; for, in my view, it is complete and correct in all respects. This separate writing responds only to one factual circumstance, mentioned at oral argument but with no direct bearing on the precise legal questions presented by this case. In response to a question, respondent's counsel advised the Court that, since being sentenced to death in 1989, Ayala has served the great majority of his more than 25 years in custody in "administrative segregation" or, as it is better known, solitary confinement. Tr. of Oral Arg. 43-44. Counsel for petitioner did not have a clear opportunity to enter the discussion, and the precise details of respondent's conditions of confinement are not established in the record. Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. Ibid.; see also Wilkinson v. Austin, 545 U. S. 209, 218 (2005); Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014). It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison. Ibid. The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators. Eighteenth-century British prison re-former John Howard wrote "that criminals who had affected an air of boldness during their trial, and appeared quite unconcerned at the pronouncing sentence upon them, were struck with horror, and shed tears when brought to these darksome solitary abodes." The State of the Prisons in England and Wales 152 (1777). In literature, Charles Dickens recounted the toil of Dr. Manette, whose 18 years of isolation in One Hundred and Five, North Tower, caused him, even years after his release, to lapse in and out of a mindless state with almost no awareness or appreciation for time or his surroundings. A Tale of Two Cities (1859). And even Manette, while imprisoned, had a work bench and tools to make shoes, a type of diversion no doubt denied many of today's inmates. One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death, solitary confinement bears "a further terror and peculiar mark of infamy." In re Medley, 134 U. S. 160, 170 (1890); see also id., at 168 ("A considerable number of the prisoners fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and others became violently insane; others, still, committed suicide"). The past centuries' experience and consideration of this issue is discussed at length in texts such as The Oxford History of the Prison: The Practice of Punishment in Western Society (1995), a joint disciplinary work edited by law professor Norval Morris and professor of medicine and psychiatry David Rothman that discusses the deprivations attendant to solitary confinement. Id., at 184. Yet despite scholarly discussion and some commentary from other sources, the condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. See, e.g., Brown v. Plata, 563 U. S. ___ (2011); Hutto v. Finney, 437 U. S. 678, 685 (1978) ("Confinement in a prison or in an isolation cell is a form of punishment subject to scrutiny under the Eighth Amendment"); Weems v. United States, 217 U. S. 349, 365-367 (1910). Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: "In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself." Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society's simple unawareness or indifference. Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away — out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts. There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular. See, e.g., Gonnerman, Before the Law, The New Yorker, Oct. 6, 2014, p. 26 (detailing multiyear solitary confinement of Kalief Browder, who was held — but never tried — for stealing a backpack); Schwirtz & Winerip, Man, Held at Rikers for 3 Years Without Trial, Kills Himself, N. Y. Times, June 9, 2015, p. A18. And penalogical and psychology experts, including scholars in the legal academy, continue to offer essential information and analysis. See, e.g., Simon & Sparks, Punishment and Society: The Emergence of an Academic Field, in The SAGE Handbook of Punishment and Society (2013); see also Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 Am. J. Pub. Health 442 (March 2014); Metzner & Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Challenge for Medical Ethics, 38 J. Am. Academy Psychiatry and Law 104-108 (2010). These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol'y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them. Over 150 years ago, Dostoyevsky wrote, "The degree of civilization in a society can be judged by entering its prisons." The Yale Book of Quotations 210 (F. Shapiro ed. 2006). There is truth to this in our own time.Thomas, J., concurring 576 U. S. ____ (2015)No. 13-1428RON DAVIS, ACTING WARDEN, PETITIONER v. HECTOR AYALAon writ of certiorari to the united states court of appeals for the ninth circuit[June 18, 2015] Justice Thomas, concurring. I join the Court's opinion explaining why Ayala is not entitled to a writ of habeas corpus from this or any other federal court. I write separately only to point out, in response to the separate opinion of Justice Kennedy, that the accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.Sotomayor, J., dissenting 576 U. S. ____ (2015)No. 13-1428RON DAVIS, ACTING WARDEN, PETITIONER v. HECTOR AYALAon writ of certiorari to the united states court of appeals for the ninth circuit[June 18, 2015] Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting. At Hector Ayala's trial, the prosecution exercised its peremptory strikes to dismiss all seven of the potential black and Hispanic jurors. In his federal habeas petition, Ayala challenged the state trial court's failure to permit his attorneys to participate in hearings regarding the legitimacy of the prosecution's alleged race-neutral reasons for its strikes. See Batson v. Kentucky, 476 U. S. 79, 97-98 (1986). The Court assumes that defense counsel's exclusion from these proceedings violated Ayala's constitutional rights, but concludes that the Ninth Circuit erred in granting habeas relief because there is insufficient reason to believe that counsel could have convinced the trial court to reject the prosecution's proffered reasons. I respectfully dissent. Given the strength of Ayala's prima facie case and the comparative juror analysis his attorneys could have developed if given the opportunity to do so, little doubt exists that counsel's exclusion from Ayala's Batson hearings substantially influenced the outcome.I My disagreement with the Court does not stem from its discussion of the applicable standard of review, which simply restates the holding of Fry v. Pliler, 551 U. S. 112 (2007). Fry rejected the argument that the Antiterrorism and Effective Death Penalty Act of 1996, 28 U. S. C. §2254, compels federal courts to apply any standard other than that set forth in Brecht v. Abrahamson, 507 U. S. 619 (1993), when assessing the harmlessness of a constitutional error on habeas review. 551 U. S., at 120. Brecht, in turn, held that the harmlessness standard federal courts must apply in collateral proceedings is more difficult to meet than the " 'beyond a reasonable doubt' " standard applicable on direct review. 507 U. S., at 622-623 (quoting Chapman v. California, 386 U. S. 18, 24 (1967)). More specifically, under Brecht, a federal court can grant habeas relief only when it concludes that a constitutional error had a " 'substantial and injurious effect or influence' " on either a jury verdict or a trial court decision. 507 U. S., at 623. Later, O'Neal v. McAninch, 513 U. S. 432 (1995), clarified that this standard is satisfied when a reviewing judge "is in grave doubt about whether" the error is harmless; that is, when "the matter is so evenly balanced that [a judge] feels himself in virtual equipoise as to the harmlessness of the error." Id., at 435 (emphasis deleted). See also ante, at 10 (quoting O'Neal, 513 U. S., at 436). Put differently, when a federal court is in equipoise as to whether an error was actually prejudicial, it must "treat the error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a 'substantial and injurious effect or influence in determining the jury's verdict')." O'Neal, 513 U. S., at 435. In addition to confirming the Brecht standard's continued vitality, Fry established its exclusivity. Fry expressly held that federal habeas courts need not first assess whether a state court unreasonably applied Chapman before deciding whether that error was prejudicial under Brecht. Such a requirement would "mak[e] no sense . . . when the latter [standard] obviously subsumes the former." Fry, 551 U. S., at 120. Nothing in the Court's opinion today calls into question this aspect of Fry's holding. If a trial error is prejudicial under Brecht's standard, a state court's determination that the error was harmless beyond a reasonable doubt is necessarily unreasonable. See ante, at 11-12.IIA To apply Brecht to the facts of this case, it is essential to understand the contours of Ayala's underlying constitutional claim or — perhaps more importantly — to appreciate what his claim is not. Trial judges assess criminal defendants' challenges to prosecutors' use of peremptory strikes using the three-part procedure first announced in Batson. After a defendant makes a "prima facie showing that a peremptory challenge [was] . . . exercised on the basis of race," the prosecution is given an opportunity to "offer a race-neutral basis for striking the juror in question," Miller-El v. Cockrell, 537 U. S. 322, 328 (2003). The court then "decid[es] whether it was more likely than not that the challenge was improperly motivated." Johnson v. California, 545 U. S. 162, 169, 170 (2005). This determination is a factual one, which — as the Court correctly notes — reviewing courts must accord " 'great deference.' " See ante, at 13 (quoting Felkner v. Jackson, 562 U. S. 594, 598 (2011) (per curiam)). Here, Ayala does not claim that the trial court wrongly rejected his Batson challenges based on the record before it. Rather, Ayala's claim centers on the exclusion of his attorneys from the Batson hearings. Ayala contends that there is at least a grave doubt as to whether the trial or appellate court's consideration of his Batson challenges was substantially influenced by the trial court's erroneous refusal to permit his attorneys to appear at the hearings at which those challenges were adjudicated. Ayala's conviction must be vacated if there is grave doubt as to whether even just one of his Batson challenges would have been sustained had the defense been present. Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (reversing a conviction after concluding that use of one peremptory strike was racially motivated).B The Court's Brecht application begins and ends with a discussion of particular arguments the Ninth Circuit posited Ayala's lawyers could have raised had they been present at his Batson hearings. This approach fails to account for the basic background principle that must inform the application of Brecht to Ayala's procedural Batson claim: the "[c]ommon sense" insight "that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides." Kaley v. United States, 571 U. S. ___, ___ (2014) (Roberts, C. J., dissenting) (slip op., at 16). Our entire criminal justice system was founded on the premise that "[t]ruth . . . is best discovered by powerful statements on both sides of the question." United States v. Cronic, 466 U. S. 648, 655 (1984) (internal quotation marks omitted). There is no reason to believe that Batson hearings are the rare exception to this rule. Instead, defense counsel could have played at least two critical roles had they been present at Ayala's Batson hearings. First, Ayala's attorneys would have been able to call into question the credibility of the prosecution's asserted race-neutral justifications for the use of its peremptory strikes. Of course, a trial court may identify some pretextual reasons on its own, but Snyder held that when assessing a claimed Batson error, "all of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder, 552 U. S., at 478. Absent an adversarial presentation, a diligent judge may overlook relevant facts or legal arguments in even a straightforward case. There is also great probative force to a "comparative juror analysis"--an analysis of whether the prosecution's reasons for using its peremptory strikes against nonwhite jurors apply equally to white jurors whom it would have allowed to serve. Miller-El v. Dretke, 545 U. S. 231, 241 (2005). See also Snyder, 552 U. S., at 483 (emphasizing importance of conducting a comparative juror analysis in the trial court). Trial courts are ill suited to perform this intensive inquiry without defense counsel's assistance. The risk that important arguments will not be considered rises close to a certainty in a capital case like Ayala's, where jury selection spanned more than three months, involved more than 200 prospective jurors, and generated a record that is massive by any standard. See Ayala v. Wong, 756 F. 3d 656, 660, 676 (CA9 2014) (case below). It strains credulity to suggest that a court confronted with this mountain of information necessarily considered all of the facts that would have informed its credibility determination without the presence of defense counsel to help bring them to its attention. Second, not only did the exclusion of defense counsel from Ayala's Batson hearings prevent him from making his strongest arguments before the person best situated to assess their merit, it also impeded his ability to raise these claims on appeal. Because Ayala's lawyers were not afforded any opportunity to respond to the prosecution's race-neutral reasons, we are left to speculate as to whether the trial court actually considered any of the points the defense would have made before it accepted the prosecution's proffered explanations. Moreover, even if we could divine which of the possible considerations the trial judge took into account, our review would still be unduly constrained by a record that lacks whatever material facts the defense would have preserved had it been on notice of the assertions that it needed to challenge. Perhaps some of these facts, such as the jurors' appearance and demeanor, were known to the trial judge, but appellate courts "can only serve [their] function when the record is clear as to the relevant facts" or when they can rely on "defense counsel['s] fail[ure] to point out any such facts after learning of the prosecutor's reasons." United States v. Thompson, 827 F. 2d 1254, 1261 (CA9 1987). Neither of these conditions is met here. For the reasons described above, the fact that counsel was wrongfully excluded from Ayala's Batson hearings on its own raises doubt as to whether the outcome of these proceedings — or the appellate courts' review of them — would have been the same had counsel been present.1 This doubt is exacerbated by the loss of the vast majority of the questionnaires that jurors completed at the start of voir dire, including those filled out by the seven black and Hispanic jurors against whom the prosecution exercised its peremptory strikes. The prosecution cited these questionnaires in support of its alleged race-neutral reasons at the ex parte Batson hearings. See e.g., App. 283, 298, 312, 314, 316. Without the underlying documents, however, it is impossible to assess whether the prosecution's characterizations of those prospective jurors' responses were fair and accurate. The loss of the questionnaires has also precluded every court that has reviewed this case from performing a comprehensive comparative juror analysis. The Court today analyzes how the prosecution's statements at the ex parte Batson hearings regarding the black and Hispanic jurors' questionnaires stack up against the actual questionnaires completed by the white seated jurors and alternates. But there is no way to discern how these representations compare with the answers that were given by white jurors whom the prosecution would have permitted to serve but whom the defense ultimately struck. See Miller-El v. Dretke, 545 U. S., at 244-245 (comparing a juror struck by the prosecution with a juror challenged only by the defense).C The above-described consequences of the trial court's procedural error and the fact that the prosecution struck every potential black or Hispanic juror go a long way toward establishing the degree of uncertainty that Brecht requires. Keeping these considerations in mind, the next step is to assess the arguments that Ayala's attorneys may have raised had they been allowed to participate at his Batson hearings. As explained above, Ayala is entitled to habeas relief if a reviewing judge is in "equipoise" as to whether his lawyers' exclusion from the Batson hearings had an "injurious effect" on the trial court's failure to find by a preponderance of the evidence that any of the prosecution's peremptory strikes was racially motivated. With the inquiry so framed, it is easy to see that the Ninth Circuit correctly found that Ayala was actually prejudiced by the trial court's constitutional error. In particular, there is a substantial likelihood that if defense counsel had been present, Ayala could at least have convinced the trial court that the race-neutral reasons the prosecution put forward for dismissing a black juror, Olanders D., were pretextual.2 The prosecution offered three justifications for striking Olanders D.: (1) he might be unable to vote for the death penalty because he had written in his questionnaire that "he does not believe [in] it" and had failed to fully explain a subsequent change in position; (2) his questionnaire answers were poor; and, (3) he might lack the "ability to fit in with a cohesive group of 12 people." App. 283. The trial court rejected the third of these reasons outright, noting that "it may well . . . be that he would get along very well with 12 people." Id., at 283-284. I have grave misgivings as to whether the trial judge would have found it more likely than not that the first two purported bases were legitimate had defense counsel been given an opportunity to respond to them. Ayala's attorneys could have challenged the prosecution's claim that Olanders D. would hesitate to impose the death penalty by pointing to a seated juror — Ana L.--who made remarkably similar statements concerning capital punishment. Based on his remarks during voir dire, it appears that Olanders D. suggested on his questionnaire that he was or had been opposed to the death penalty.3 Id., at 176, 179. Ana L.'s questionnaire contained numerous comparable statements. When asked to express her "feelings about the death penalty," she wrote: "I don't believe in taking a life." Id., at 108. And, in response to a question regarding whether she "would like to serve as a juror and why?", Ana L. said: "no — If I am selected as a Juror and all Jurors voted for the death penalty I probably would not be able to vote for the death penalty." Id., at 109. Finally, on her questionnaire, Ana L. indicated that she believes the death penalty is imposed "[t]oo often" and that she strongly disagrees with the "adage, 'An eye for any eye,' " which she understood to mean,"[a] criminal took a life[,] now [it] is our turn to take his." Id., at 108-109. A direct comparison of Olanders D.'s and Ana L.'s voir dire answers is equally telling. During voir dire, Olanders D. clarified that he had not intended his questionnaire to reflect that he was categorically opposed to the death penalty, but only that his views on the topic had evolved over the prior decade and that he had come to believe that the death penalty "would be an appropriate sentence under certain circumstances." Id., at 176. To account for this change in his position, Olanders D. cited a number of considerations, including a new understanding of what his religion required, ibid., "more familiar[ity] with the laws," id., at 178, increased violence in our society, ibid., and conversations with his immediate family, id., at 180. Ana L., by contrast, stated at voir dire that she "strongly . . . did not believe in the death penalty" up until she "[f]illed out the questionnaire." Id., at 193. And, only after repeated attempts by both the defense and the prosecution to get her to pinpoint what caused this sudden about face, Ana L. said that she had "listen[ed] to the Bundy evidence that was said and his being put to death, and I started to think; and I said if they were guilty maybe there is a death sentence for these people." Id., at 202.4 Based on this record, it requires little speculation to see that defense counsel could have made a powerful argument that Ana L. was equally or even less likely to impose the death penalty than Olanders D. While both jurors had opposed the death penalty at some point in the past, Olanders D. stated that he had come to believe in capital punishment after a period of sustained deliberation. Ana L., however, purported to change her view due only to one recent execution and the fact that she had been called to serve as a juror on a capital case. Moreover, there is no basis to think that the trial court accounted for the similarities between Ana L. and Olanders D. Approximately two months passed between Olanders D.'s and Ana L.'s voir dire hearings and the date on which the prosecution exercised its peremptory strike against Olanders D. Without the benefit of defense counsel to help jog his recollection, it is absurd to proceed as if the trial judge actually considered one of more than 200 prospective jurors' statements concerning the death penalty when ruling on Ayala's Batson motion. Taken together, it seems highly likely that these arguments — had they been raised — would have convinced the trial judge that the prosecution's first alleged reason for striking Olanders D. was pretextual. As for the prosecution's second purported justification — that his questionnaire responses "were poor," id., at 283 — it is impossible to know what winning arguments the defense could have raised because the questionnaire itself is missing from the record.5 Indeed, for all that is known, counsel may have had a compelling argument that Olanders D.'s answers were cogent and complete. Even if some of them were lacking, however, counsel could still have drawn the trial judge's attention to weak questionnaires completed by several of the seated jurors. For instance, if the prosecution's claim was that Olanders D.'s questionnaire answers were conclusory, Ayala's counsel could have referred the Court to seated juror Charles G.'s questionnaire. In response to a prompt asking prospective jurors to explain why they would or would not like to be empaneled in Ayala's case, Charles G. wrote only "No." Id., at 71. Alternatively, if the prosecution's concern was that Olanders D.'s answer to a particular question demonstrated an inability to clearly express himself, the defense could have directed the court's attention to the questionnaire completed by seated juror Thomas B. When asked to share his "impressions or feelings . . . about gangs based on what [he had] read or s[een]," Thomas B. stated: "I feel the only media coverage they get is bad, however, those whom do constructive events usually seek out positive media coverage." Id., at 30. Finally, it bears noting that if Ayala's lawyers had been able to respond at the Batson hearing, they would have had the questionnaires of many more comparable jurors at their disposal. It is entirely possible that some of the questionnaires completed by prospective jurors who were accepted by the prosecution but dismissed by the defense were weaker than those completed by Charles G. and Thomas B. In short, it is probable that had Ayala's lawyers been present at the Batson hearing on Olanders D., his strong Batson claim would have turned out to be a winning one. The trial judge rejected one of the reasons advanced by the prosecution on its own and the defense had numerous persuasive arguments that it could have leveled against the remaining two justifications had it been given the opportunity to do so.III The Court concludes that Ayala is not entitled to habeas relief because it finds that there is little or no reason to doubt that the trial judge would have accepted both of the above-discussed reasons for striking Olanders D. even if counsel participated at Ayala's Batson hearings. The Court's analysis, however, misunderstands the record and mistakes Ayala's procedural Batson claim for a direct challenge to a trial court's denial of a Batson motion. In defense of the prosecution's first basis for striking Olanders D.--that he was uncomfortable with the death penalty — the Court begins by asserting that Ana L. was insufficiently similar to Olanders D. to have cast any doubt on the prosecution's position. Olanders D., the Court maintains, "initially voiced unequivocal opposition to the death penalty," whereas Ana L. "wrote on [her] questionnaire that she 'probably would not be able to vote for the death penalty.' " Ante, at 15-16 (emphasis in original). But the Court has plucked one arguably ambiguous statement from Ana L.'s questionnaire while ignoring others (described above) suggesting that she fundamentally opposed capital punishment. More importantly, the Court is not comparing apples with apples. Because Olanders D.'s questionnaire has been lost, there is no way to know the extent to which the views he expressed there were "unequivocal." Consequently, in support of its contention that Olanders D. originally wrote that he was categorically opposed to the death penalty, the Court relies on his response to a question posed by the prosecution during voir dire. To be sure, when asked whether he had stated that he did not "believe in the death penalty" on his questionnaire, Olanders D. responded: "That's correct." App. 179. During voir dire, however, Ana L. described the position she had taken in her questionnaire in identical terms, stating: "I remember saying [on my questionnaire] that I didn't believe in the death penalty." Id., at 201. Given the difficulty of differentiating between Ana L.'s and Olanders D.'s views toward the death penalty based on the record before us, the Court understandably does not press this factual point further. Instead, it commits a legal error by contending that the trial court's determination is entitled to deference because the judge — unlike this Court — had the benefit of observing both Olanders D.'s and the prosecution's demeanor. Ante, at 16. Deference may be warranted when reviewing a substantive Batson claim. By suggesting that a trial judge can make a sound credibility determination without the benefit of an adversarial proceeding, however, the Court ignores the procedural nature of the constitutional error whose existence it purports to assume. Courts defer to credibility findings not only because of trial judges' proximity to courtroom events, but also because of the expectations regarding the procedures used in the proceedings that they oversee. A decision to credit a prosecution's race-neutral basis for striking a juror is entitled to great weight if that reason has "survive[d] the crucible of meaningful adversarial testing." Cronic, 466 U. S., at 656. It warrants substantially less — if any — deference where, as here, it is made in the absence of the "fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate." Carroll v. President and Comm'rs of Princess Anne, 393 U. S. 175, 183 (1968); see also Kaley, 571 U. S., at ___ (Roberts, C. J., dissenting) (slip op., at 16) ("It takes little imagination to see that . . . ex parte proceedings create a heightened risk of error").6 The Court's analysis of the second reason put forward for striking Olanders D.--that his questionnaire was faulty-- fares no better. As a preliminary matter, perhaps because Olanders D.'s questionnaire has been lost, the Court characterizes the prosecution's second proffered reason for dismissing Olanders D. as an objection to all of his "responses" as opposed to simply the responses on his questionnaire. Ante, at 14. But even if the prosecution had relied on the rationale that the Court now substitutes, there is a real likelihood that the defense would still have been able to undermine its credibility. The Court asserts that Olanders D.'s "responses" were misleading because he had "unequivocally" stated that he did not believe in the death penalty on his questionnaire, but at voir dire he said that his views on capital punishment had changed over the previous 10 years. Ante, at 18. The Court's argument thus hinges on the premise that Olanders D.'s questionnaire clearly stated that he was opposed to the death penalty. At least one person, however, did not construe Olander D.'s questionnaire to express such a categorical view: defense counsel. During voir dire, one of Ayala's lawyers remarked that she thought Olanders D.'s questionnaire "indicated that [he] had had some change in [his] feelings about the death penalty." App. 176. "[M]y understanding," she said, "is that at one time [he] felt one way, and — and then at some point [he] felt differently." Ibid. Thus, if (as the Court now hypothesizes) the trial court was inclined to accept the prosecution's second reason for striking Olanders D. based on apparent tension between his questionnaire and his statements during voir dire (a proposition that is itself uncertain), the defense may have been able to argue persuasively that any claimed inconsistency was illusory.* * * Batson recognized that it is fundamentally unfair to permit racial considerations to drive the use of peremptory challenges against jurors. When the prosecution strikes every potential black and Hispanic juror, a reviewing court has a responsibility to ensure that the trial court's denial of the defendant's Batson motion was not influenced by constitutional error. But there is neither a factual nor a legal basis for the Court's confidence that the prosecution's race-neutral reasons for striking Olanders D. were unassailable. Because the Court overlooks that Ayala raised a procedural Batson claim, it scours the record for possible support for the trial court's credibility determination without accounting for the flaws in the process that led to it. The proper inquiry is not whether the trial court's determination can be sustained, but whether it may have been different had counsel been present. Given the strength of Ayala's prima facie case and the arguments his counsel would have been able to make based even on the limited existing record, grave doubts exist as to whether counsel's exclusion from Ayala's Batson hearings was harmless. Accordingly, I respectfully dissent.FOOTNOTESFootnote 1 The panel decided this question de novo because it concluded that the California Supreme Court either did not decide whether the ex parte proceedings violated the Federal Constitution or silently decided that question in Ayala's favor. 756 F. 3d, at 666-670.Footnote 2 In a footnote, however, the panel stated: "In holding that Ayala has demonstrated his entitlement to relief under Brecht, we therefore also hold to be an unreasonable application of Chapman the California Supreme Court's conclusion that Ayala was not prejudiced by the exclusion of the defense." Id., at 674, n. 13.Footnote 3 The California Supreme Court has held that "[i]nsufficient command of the English language to allow full understanding of the words employed in instructions and full participation in deliberations clearly . . . render[s] a juror 'unable to perform his duty' " within the meaning of the California Penal Code. People v. Lomax, 49 Cal. 4th 530, 566, 234 P. 3d 377, 407 (2010) (citation omitted). See also Cal. Code Ann. Civ. Proc. §203(a)(6) (West 2006). The seating of jurors whose lack of English proficiency was only somewhat more pronounced than Gerardo O.'s has been held to be error. See People v. Szymanski, 109 Cal. App. 4th 1126, 135 Cal. Rptr. 2d 691 (2003).Footnote 4 See Man Acquitted of Killing Officer, N. Y. Times, July 17, 1987, p. B8.Footnote 5 See People v. Harris, 28 Cal. 3d 935, 623 P. 2d 240 (1981).FOOTNOTESFootnote 1 Indeed, in a future case arising in a direct review posture, the Court may have occasion to consider whether the error that the Court assumes here gives rise to "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." United States v. Cronic, 466 U. S. 648, 658 (1984). See also Mickens v. Taylor, 535 U. S. 162, 166 (2002) (noting that we have "presumed [prejudicial] effec[t] where assistance of counsel has been denied entirely or during a critical stage of the proceeding").Footnote 2 Because Ayala was actually prejudiced by his counsel's exclusion from the Batson hearing on Olanders D., there is no need to address his claims concerning the other black and Hispanic jurors. That said, Ayala's attorneys may have had strong arguments with respect to those jurors too. Moreover, Ayala's Batson challenge to Olanders D. would have been even stronger had counsel been given the opportunity to demonstrate that some of the reasons given for striking the other black and Hispanic jurors were pretextual. See Snyder v. Louisiana, 552 U. S. 472, 478 (2008) (observing that courts should "consider the strike of [one juror] for the bearing it might have upon the strike of [a second juror]").Footnote 3 It is, of course, impossible to verify what Olanders D. said in his questionnaire because that document is not in the record. If Ayala's lawyers had been present at Olanders D.'s Batson hearing, they may have argued that his questionnaire showed that his position on capital punishment had changed over time. See Part III, infra.Footnote 4 The Court claims that Olanders D. was less than eloquent in describing his thought process. Ante, at 15. But it is not difficult to understand what he meant. In any event, as the Court later concedes, prospective jurors are likely to struggle when asked to express their views on the death penalty. Ante, at 16. Ana L. was no exception. For instance, when defense counsel first asked her to describe her thought process, she responded, "Up to [when I filled out my questionnaire], I did not believe in putting someone to death." App. at 194. She continued: "But being that you've given me the — the opportunity to come over here, seeing something that is not correct in the system, it wouldn't be no problem . . . for me to give to come to a decision on the death penalty anymore." Ibid.Footnote 5 The Court states that the prosecution's second purported race-neutral reason for striking Olanders D. was that his "responses" were poor, but it conveniently neglects to mention that the responses to which the prosecution referred were clearly those Olanders D. gave on his questionnaire. Ante, at 14; see App. 283 ("My observations in reading his questionnaire and before even making note of his racial orientation was that his responses were poor"). Footnote 6 None of the cases the Court cites are inconsistent with this logic. Miller-El v. Dretke, 545 U. S. 231, 236-237 (2005), Snyder, 552 U. S., at 474, and Rice v. Collins, 546 U. S. 333, 336 (2006), all concerned direct challenges to a trial court's denial of a Batson motion as opposed to procedural Batson claims. |
0 | 1. In an action by the United States under the Housing and Rent Act of 1947, as amended, a landlord may be ordered under 206 (b) to make restitution of overceiling rentals, even though a prohibitory injunction be not required because the defense-rental area was decontrolled after the violations but before suit was brought. Pp. 617-620. (a) An order for restitution in this action was permissible under the "other order" provision of 206 (b). Porter v. Warner Holding Co., . Pp. 619-620.2. The termination of rent control in the defense-rental area did not end the legal effect of 205 and 206 (under which this action was brought), in view of the provision of 204 (f) for the survival of rights and liabilities incurred prior to the expiration of the Act on either the date specified by Congress in the Act or such date as the President or Congress might later determine. Pp. 620-621.3. The trial of this proceeding as an action for equitable relief did not deny respondents their constitutional right to a jury trial, because no demand for a jury trial was made as required by Rule 38 of the Federal Rules of Civil Procedure and, so far as the record shows, any right to a jury trial was waived. P. 621. 182 F.2d 332, reversed. The case is stated in the opinion, pp. 617-618. The judgment of the Court of Appeals is reversed, p. 621.James L. Morrisson argued the cause for the United States. With him on the brief were Solicitor General Perlman, Ed Dupree, Leon J. Libeu and Nathan Siegel.Frank Cusack submitted on brief for respondents. MR. JUSTICE CLARK delivered the opinion of the Court.The United States brings this action under the Housing and Rent Act of 1947, as amended,1 to obtain damages for violations of the Act and restitution of overceiling rentals collected. The question is whether under 206 (b) of the Act a landlord may be ordered to make restitution of overceiling rentals where a prohibitory injunction is not required because the defense-rental area was decontrolled after the violations but before the Government brought suit.Respondents are landlords of housing accommodations in Dallas, Texas. Between October 1, 1947, and May 31, 1949, they demanded and received rents in excess of those allowed by the applicable maximum rent regulation2 issued under the Act. This action was begun in Federal District Court on June 29, 1949, pursuant to 2053 and 206 (b)4 of the Act. The complaint by its terms sought a prohibitory injunction, restitution of all overcharges, and statutory damages. Respondents moved to dismiss on the ground that on June 23, 1949, six days prior to filing of the complaint, the Housing Expediter, pursuant to action taken by the City of Dallas under 204 (j) (3) of the Act, terminated rent control in that city; that this act of the Expediter terminated as to Dallas all provisions of Title II of the Act including the remedial provisions under which this suit is brought; and that no saving clause was applicable. The District Court denied the motion. Respondents did not demand a jury. A trial to the court concluded in a judgment for the Government, allowing statutory damages of $50 for a wilful violation and ordering restitution to the tenant of all overcharges received. On appeal by respondents the Court of Appeals for the Fifth Circuit reversed. 182 F.2d 332 (1950). It held that the Government has a right of action solely for statutory damages under 205 and remanded for new trial on this issue. A dismissal was directed insofar as the complaint seeks injunctive relief and restitution. The Government, asserting conflict with Porter v. Warner Holding Co., , petitioned for review here only of the court's denial of restitution. We granted certiorari. .5 The Court of Appeals recognized that restitution of overceiling rentals may be ordered as ancillary to injunctive relief against violations of the Act or regulations. However, as petitioner conceded that it has no right to an injunction when rent control has been lawfully terminated, the court concluded that "there remained no proceeding of which equity would have jurisdiction to which restitution could be adjunctive" and that restitution "was neither appropriate nor issuable." 182 F.2d at 336.Petitioner asserts that it is entitled to the remedy of restitution, independently of injunctive relief, under 206 (b) of the Act. This section provides that, if in the judgment of the Housing Expediter there is an actual or threatened violation of the Act or any regulation, "the United States may make application to any ... court of competent jurisdiction for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond." (Emphasis supplied.) It is petitioner's contention that the italicized language authorizes the relief sought.Both parties rely, as did the Court of Appeals, on the decision of this Court in Porter v. Warner Holding Co., supra, which construed 205 (a) of the Emergency Price Control Act of 1942. This provision was the source of 206 (b) of the 1947 Act, and the two sections are for present purposes identical. The complaint in the Warner case sought injunctive relief against violations and restitution of overcharges. The lower courts allowed the injunction but denied restitution. This Court reversed, concluding that an order of restitution was a proper "other order." This interpretation was required to give effect to the congressional purpose to authorize whatever order within the inherent equitable power of the District Court may be considered appropriate and necessary to enforce compliance with the Act. The Court said that the section "anticipates orders of that character, although it makes no attempt to catalogue the infinite forms and variations which such orders might take... . In framing such remedies ... courts must act primarily to effectuate the policy of the Emergency Price Control Act and to protect the public interest while giving necessary respect to the private interests involved. The inherent equitable jurisdiction which is thus called into play clearly authorizes a court, in its discretion, to decree restitution of excessive charges in order to give effect to the policy of Congress." at 400. Thus an equitable decree of restitution would be within the section if it was reasonably appropriate and necessary to enforce compliance with the Act and effectuate its purposes.Adhering to the broad ground of interpretation of the "other orders" provision adopted in the Warner case, we think the order for restitution entered by the District Court in this action was permissible under 206 (b). Such a decree clearly enforces compliance with the Act and regulations for the period in which respondents demanded and received excess rentals. If the provision in 206 (b) for orders enforcing compliance had been intended merely to insure subsequent obedience to rent regulations while in effect in a defense-rental area, it would have been unnecessary to authorize orders for other than injunctive relief since the latter remedy is wholly adequate to secure prospective compliance. See Ebeling v. Woods, 175 F.2d 242, 244 (C. A. 8th Cir. 1949).6 Two contentions advanced by respondents require brief consideration. It is argued that termination of rent control in respondents' defense-rental area ended the legal effect of 205 and 206 under which the action was instituted. Respondents rely here upon the literal provision of 204 (j) (3) that "The Housing Expediter shall terminate the provisions of this title" upon the taking of appropriate action by the city. We think a sufficient answer is 204 (f), set out in the margin;7 it provides for the survival of rights and liabilities incurred prior to the expiration of the title on either the date specified by Congress in the Act or such date as the President or Congress might later determine.Respondents also contend that the trial of this proceeding as an action for equitable relief denied their constitutional right to a jury trial. No demand for a jury trial was made as required by Rule 38 of the Federal Rules of Civil Procedure and, so far as this record shows, any right to a jury trial was waived.The judgment of the Court of Appeals on respondents' appeal must be reversed and the cause remanded to that court for further proceedings in conformity with this opinion. Reversed. THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS would affirm the judgment on the opinion of the Court of Appeals. 182 F.2d 332.MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER would affirm the judgment of the Court of Appeals. |
8 | Appellee bank holding company's planned acquisition of additional banks was governed by both the Bank Holding Company Act requiring the Federal Reserve Board's approval of the acquisition and the Bank Merger Act requiring the Comptroller of the Currency's approval. Both statutes provide that an antitrust suit challenging a transaction approved by the designated agency must be brought within 30 days of such approval. Within 30 days after the Board had approved the planned acquisition but before the Comptroller had acted, the Government brought a Clayton Act suit to enjoin the acquisition, which the District Court dismissed without prejudice, ruling that the Government should bring a new suit if and when the Comptroller approved the acquisition. Held: The District Court erred in taking such action but should stay the suit until the Comptroller acts. Such procedure will conserve judicial resources and fully protect both parties, and avoid possible prejudice to the Government, which by being required to wait for the Comptroller's approval before filing suit would risk having complete relief barred by the time limitation of the Bank Holding Company Act. Vacated and remanded. PER CURIAM.This is an appeal from an order of the District Court dismissing without prejudice the Government's suit under 7 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 18, to enjoin a bank holding company's acquisition. Appellee Michigan National Corporation (MNC), a bank holding company that owns five Michigan banks, seeks control of four additional Michigan banks. The planned acquisition will take the following form. MNC will charter four "phantom" banks, initially having no assets or deposits, whose stock it will acquire. The four target banks will be merged with the phantom banks, thereby becoming subsidiary banks of the holding company.The form of the transaction brings it within the purview of two regulatory statutes. Section 3 of the Bank Holding Company Act of 1956, 70 Stat. 134, as amended, 80 Stat. 237, 12 U.S.C. 1842, requires that an acquisition of a subsidiary bank by a holding company be approved by the Board of Governors of the Federal Reserve System. Section 18 (c) (2) (A) of the Federal Deposit Insurance Act, as amended by the Bank Merger Act, 80 Stat. 7, 12 U.S.C. 1828 (c) (2) (A), requires approval of bank mergers by a designated agency, which in the case of an acquisition by a national bank is the Comptroller of the Currency. Each regulatory statute provides time limitations for antitrust suits challenging transactions that have gained administrative approval. The Bank Holding Company Act, 11, as amended, 80 Stat. 240, 12 U.S.C. 1849, provides that an antitrust suit arising from a holding company acquisition must be brought within 30 days of approval by the Federal Reserve Board. The Bank Merger Act, 12 U.S.C. 1828 (c) (6) and (7), establishes a similar 30-day period following approval of a merger by the designated administrative body.1 Under both statutes, transactions having administrative approval cannot go forward during the period within which an antitrust suit may be brought, or during the pendency of a timely antitrust suit unless the court otherwise orders. The expiration of the period without the filing of an antitrust suit, however, allows the transacting parties to consummate arrangements without fear of challenge.MNC made applications to both the Federal Reserve Board and the Comptroller for approval of its proposed transactions. Disapproval by either body would prevent MNC from completing the entire acquisition as planned. In October 1973 the Federal Reserve Board approved the acquisitions by the holding company. Without awaiting action by the Comptroller, the Government filed complaints under the Clayton Act to enjoin the acquisition; the suit was brought within the 30-day period prescribed by 11 of the Bank Holding Company Act. The District Court dismissed the complaints without prejudice, ruling that the Government should bring a new lawsuit if and when the Comptroller approved the merger of the target banks with the "phantoms." The Government took a direct appeal to this Court, 32 Stat. 823, 15 U.S.C. 29.The District Court reasoned that the Government's suit was "premature," since a disapproval by the Comptroller would moot the Clayton Act claim. Whether viewed as a dismissal for lack of a "case or controversy" or as an exercise of equitable discretion, we believe the District Court's action was error.The view that the possibility of disapproval by the Comptroller deprived the District Court of an actual controversy to adjudicate, a position taken by appellees below, cannot be squared with the many decisions permitting a federal court to stay proceedings in a case properly before it while awaiting the decision of another tribunal. This is the holding of Railroad Comm'n v. Pullman Co., , which launched the abstention doctrine. Pullman held that where an order of the Texas Railroad Commission was challenged in a District Court as violative of the Fourteenth Amendment and as outside the Commission's authority under state law, the federal court should stay proceedings pending a resolution by the Texas courts of the state law question of the Commission's authority. In succeeding cases that have applied the Pullman doctrine, the common practice has been for the district court to retain jurisdiction but to stay proceedings while awaiting a decision in the state courts. See, e. g., Chicago v. Fieldcrest Dairies, Inc., ; Spector Motor Service, Inc. v. McLaughlin, ; Government & Civic Employees Organizing Committee v. Windsor, ; Louisiana Power & Light Co. v. City of Thibodaux, ; England v. Louisiana State Board of Medical Examiners, ; Lake Carriers' Assn. v. MacMullan, . That a favorable decision in the state court might moot the plaintiff's constitutional claim brought to the federal court was never thought to create any jurisdictional impediment. For jurisdictional purposes, it suffices that there is a "real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Insurance Co. v. Haworth, .The same procedure has generally been followed when the resolution of a claim cognizable in a federal court must await a determination by an administrative agency having primary jurisdiction. See Carnation Co. v. Pacific Westbound Conference, ; General American Tank Car Corp. v. El Dorado Terminal Co., ; Mitchell Coal Co. v. Pennsylvania R. Co., . Dismissal rather than a stay has been approved where there is assurance that no party is prejudiced thereby.2 See Far East Conference v. United States, .In the present case we cannot say with assurance that the Government will not be prejudiced by a dismissal. Section 11 of the Bank Holding Company Act provides that "[a]ny action brought under the antitrust laws arising out of an acquisition, merger, or consolidation transaction" shall be commenced within the 30-day period following approval by the Board. 12 U.S.C. 1849 (b) (emphasis added). By the time the Comptroller approves the mergers, the 30-day period following Board approval may have long since expired.3 By waiting for approval of the Comptroller before filing its lawsuit, the Government runs the risk that complete relief will be barred by the provisions of 11. MNC disputes this, arguing that so long as the Government brings suit following the Comptroller's approval within the time prescribed by the Bank Merger Act, it will be able to challenge the merger of the target banks with the "phantoms," the only event which gives the transaction competitive significance.Congress does not appear to have considered expressly the application of the time limitations to transactions falling within both regulatory statutes.4 While the question is not free from doubt, there is a procedure that preserves beyond doubt the Government's ability fully to pursue its Clayton Act suit and at the same time produces no hardship to the other party.5 Where suit is brought after the first administrative decision and stayed until remaining administrative proceedings have concluded, judicial resources are conserved and both parties fully protected.The judgment of the District Court is vacated and the case remanded for the entry of further orders consistent with this opinion. So ordered. |
7 | The Illinois Business Take-Over Act requires a tender offeror to notify the Secretary of State and the target company of its intent to make a tender offer and the terms of the offer 20 days before the offer becomes effective. During that time the offeror may not communicate its offer to the shareholders, but the target company is free to disseminate information to its shareholders concerning the impending offer. The Act also requires any takeover offer to be registered with the Secretary of State. A target company is defined as a corporation of which Illinois shareholders own 10% of the class of securities subject to the takeover offer or for which any two of the following conditions are met: the corporation has its principal office in Illinois, is organized under Illinois laws, or has at least 10% of its stated capital and paid-in surplus represented within the State. An offer becomes registered 20 days after a registration statement is filed with the Secretary of State unless he calls a hearing to adjudicate the fairness of the offer. Appellee MITE Corp., a corporation organized under Delaware laws with its principal office in Connecticut, initiated a tender offer for all outstanding shares of Chicago Rivet & Machine Co., an Illinois corporation, by filing with the Securities and Exchange Commission the schedule required by the Williams Act. MITE, however, did not comply with the Illinois Act, and brought an action in Federal District Court seeking a declaratory judgment that the Illinois Act was pre-empted by the Williams Act and violated the Commerce Clause, and also seeking injunctive relief. The District Court issued a preliminary injunction prohibiting enforcement of the Illinois Act against MITE's tender offer. MITE then published its offer. Subsequently, the District Court issued the requested declaratory judgment and a permanent injunction. Shortly thereafter, MITE and Chicago Rivet entered into an agreement whereby both MITE's tender offer and an offer made by Chicago Rivet before the District Court entered its judgment were withdrawn and MITE was given a specified time to make another offer. Ultimately, MITE decided not to make another offer. The Court of Appeals affirmed the District Court.Held: The judgment is affirmed. 633 F.2d 486, affirmed. JUSTICE WHITE delivered the opinion of the Court with respect to Parts I, II, and V-B, concluding that: 1. The case is not moot. Because the Secretary of State has indicated his intention to enforce the Illinois Act against MITE, a reversal of the District Court's judgment would expose MITE to civil and criminal liability for making an offer in violation of the Act. P. 630. 2. The Illinois Act is unconstitutional under the Commerce Clause, because it imposes burdens on interstate commerce that are excessive in light of the local interests the Act purports to further. Pike v. Bruce Church, Inc., . Illinois' asserted interests in protecting resident security holders and regulating the internal affairs of companies incorporated under Illinois law are insufficient to outweigh such burdens. Pp. 643-646. WHITE, J., delivered an opinion, joined in its entirety by BURGER, C. J., Parts I, II, and V-B of which are the opinion of the Court. BLACKMUN, J., joined Parts I, II, III, and IV. POWELL, J., joined Parts I and V-B. STEVENS and O'CONNOR, JJ., joined Parts I, II, and V. POWELL, J., filed an opinion concurring in part, post, p. 646. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post,p. 647. O'CONNOR, J., filed an opinion concurring in part, post, p. 655. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 655. REHNQUIST, J., filed a dissenting opinion, post, p. 664.Russell C. Grimes, Jr., Assistant Attorney General of Illinois, argued the cause for appellant. With him on the briefs were Tyrone C. Fahner, Attorney General, and Paul J. Bargiel, Assistant Attorney General.Richard W. Hulbert argued the cause for appellees. With him on the brief was Christopher H. Lunding.Eugene D. Berman, Assistant Attorney General, argued the cause for the State of New York as amicus curiae urging reversal. With him on the brief were Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, Linda S. Martinson, Deputy Assistant Attorney General, and Elizabeth Block, Assistant Attorney General.Stephen M. Shapiro argued the cause for the Securities and Exchange Commission as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Wallace, Assistant Attorney General Baxter, Deputy Solicitor General Geller, Ralph C. Ferrara, Paul Gonson, Daniel L. Goelzer, and James R. Farrand.* [Footnote *] Briefs of amici curiae urging reversal were filed by William J. Brown, Attorney General, and Roger P. Sugarman, Assistant Attorney General, for the State of Ohio; by Marshall Coleman, Attorney General, Walter H. Ryland, Chief Deputy Attorney General, and Karen A. Gould, Assistant Attorney General, for the Commonwealth of Virginia; and by Orestes J. Mihaly, Stephen M. Coons, and K. Houston Matney for the North American Securities Administrators Association, Inc.JUSTICE WHITE delivered an opinion, Parts I, II, and V-B of which are the opinion of the Court.FnThe issue in this case is whether the Illinois Business Take-Over Act, Ill. Rev. Stat., ch. 121 1/2, § 137.51 et seq. (1979), is unconstitutional under the Supremacy and Commerce Clauses of the Federal Constitution.IAppellee MITE Corp. and its wholly owned subsidiary, MITE Holdings, Inc., are corporations organized under the laws of Delaware with their principal executive offices in Connecticut. Appellant James Edgar is the Secretary of State of Illinois and is charged with the administration and enforcement of the Illinois Act. Under the Illinois Act any takeover offer1 for the shares of a target company must be registered with the Secretary of State. Ill. Rev. Stat., ch. 121 1/2, § 137.54.A (1979). A target company is defined as a corporation or other issuer of securities of which shareholders located in Illinois own 10% of the class of equity securities subject to the offer, or for which any two of the following three conditions are met: the corporation has its principal executive office in Illinois, is organized under the laws of Illinois, or has at least 10% of its stated capital and paid-in surplus represented within the State. § 137.52-10. An offer becomes registered 20 days after a registration statement is filed with the Secretary unless the Secretary calls a hearing. § 137.54.E. The Secretary may call a hearing at any time during the 20-day waiting period to adjudicate the substantive fairness of the offer if he believes it is necessary to protect the shareholders of the target company, and a hearing must be held if requested by a majority of a target company's outside directors or by Illinois shareholders who own 10% of the class of securities subject to the offer. § 137.57.A. If the Secretary does hold a hearing, he is directed by the statute to deny registration to a tender offer if he finds that it "fails to provide full and fair disclosure to the offerees of all material information concerning the take-over offer, or that the take-over offer is inequitable or would work or tend to work a fraud or deceit upon the offerees ... ." § 137.57.E.On January 19, 1979, MITE initiated a cash tender offer for all outstanding shares of Chicago Rivet & Machine Co., a publicly held Illinois corporation, by filing a Schedule 14D-1 with the Securities and Exchange Commission in order to comply with the Williams Act.2 The Schedule 14D-1 indicated that MITE was willing to pay $28 per share for any and all outstanding shares of Chicago Rivet, a premium of approximately $4 over the then-prevailing market price. MITE did not comply with the Illinois Act, however, and commenced this litigation on the same day by filing an action in the United States District Court for the Northern District of Illinois. The complaint asked for a declaratory judgment that the Illinois Act was pre-empted by the Williams Act and violated the Commerce Clause. In addition, MITE sought a temporary restraining order and preliminary and permanent injunctions prohibiting the Illinois Secretary of State from enforcing the Illinois Act.Chicago Rivet responded three days later by bringing suit in Pennsylvania, where it conducted most of its business, seeking to enjoin MITE from proceeding with its proposed tender offer on the ground that the offer violated the Pennsylvania Takeover Disclosure Law, Pa. Stat. Ann., Tit. 70, 71 et seq. (Purdon Supp. 1982-1983). After Chicago Rivet's efforts to obtain relief in Pennsylvania proved unsuccessful,3 both Chicago Rivet and the Illinois Secretary of State took steps to invoke the Illinois Act. On February 1, 1979, the Secretary of State notified MITE that he intended to issue an order requiring it to cease and desist further efforts to make a tender offer for Chicago Rivet. On February 2, 1979, Chicago Rivet notified MITE by letter that it would file suit in Illinois state court to enjoin the proposed tender offer. MITE renewed its request for injunctive relief in the District Court and on February 2 the District Court issued a preliminary injunction prohibiting the Secretary of State from enforcing the Illinois Act against MITE's tender offer for Chicago Rivet.MITE then published its tender offer in the February 5 edition of the Wall Street Journal. The offer was made to all shareholders of Chicago Rivet residing throughout the United States. The outstanding stock was worth over $23 million at the offering price. On the same day Chicago Rivet made an offer for approximately 40% of its own shares at $30 per share.4 The District Court entered final judgment on February 9, declaring that the Illinois Act was pre-empted by the Williams Act and that it violated the Commerce Clause. Accordingly, the District Court permanently enjoined enforcement of the Illinois statute against MITE. Shortly after final judgment was entered, MITE and Chicago Rivet entered into an agreement whereby both tender offers were withdrawn and MITE was given 30 days to examine the books and records of Chicago Rivet. Under the agreement MITE was either to make a tender offer of $31 per share before March 12, 1979, which Chicago Rivet agreed not to oppose, or decide not to acquire Chicago Rivet's shares or assets. App. to Brief for Appellees 1a-4a. On March 2, 1979, MITE announced its decision not to make a tender offer.The United States Court of Appeals for the Seventh Circuit affirmed sub nom. MITE Corp. v. Dixon, 633 F.2d 486 (1980). It agreed with the District Court that several provisions of the Illinois Act are pre-empted by the Williams Act and that the Illinois Act unduly burdens interstate commerce in violation of the Commerce Clause. We noted probable jurisdiction, , and now affirm.IIThe Court of Appeals specifically found that this case was not moot, 633 F.2d, at 490, reasoning that because the Secretary has indicated he intends to enforce the Act against MITE, a reversal of the judgment of the District Court would expose MITE to civil and criminal liability5 for making the February 5, 1979, offer in violation of the Illinois Act. We agree. It is urged that the preliminary injunction issued by the District Court is a complete defense to civil or criminal penalties. While, as JUSTICE STEVENS' concurrence indicates, that is not a frivolous question by any means; it is an issue to be decided when and if the Secretary of State initiates an action. That action would be foreclosed if we agree with the Court of Appeals that the Illinois Act is unconstitutional. Accordingly, the case is not moot.IIIWe first address the holding that the Illinois Take-Over Act is unconstitutional under the Supremacy Clause. We note at the outset that in passing the Williams Act, which is an amendment to the Securities Exchange Act of 1934, Congress did not also amend 28(a) of the 1934 Act, 15 U.S.C. 78bb(a).6 In pertinent part, 28(a) provides as follows:"Nothing in this title shall affect the jurisdiction of the securities commission (or any agency or officer performing like functions) of any State over any security or any person insofar as it does not conflict with the provisions of this title or the rules and regulations thereunder." 48 Stat. 903. Thus Congress did not explicitly prohibit States from regulating takeovers; it left the determination whether the Illinois statute conflicts with the Williams Act to the courts. Of course, a state statute is void to the extent that it actually conflicts with a valid federal statute; and"[a] conflict will be found `where compliance with both federal and state regulations is a physical impossibility ...,' Florida Lime & Avocado Growers, Inc. v. Paul, , or where the state `law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, ; Jones v. Rath Packing Co., [,] 526, 540-541 [(1977)]. Accord, De Canas v. Bica, ." Ray v. Atlantic Richfield Co., . Our inquiry is further narrowed in this case since there is no contention that it would be impossible to comply with both the provisions of the Williams Act and the more burdensome requirements of the Illinois law. The issue thus is, as it was in the Court of Appeals, whether the Illinois Act frustrates the objectives of the Williams Act in some substantial way.The Williams Act, passed in 1968, was the congressional response to the increased use of cash tender offers in corporate acquisitions, a device that had "removed a substantial number of corporate control contests from the reach of existing disclosure requirements of the federal securities laws." Piper v. Chris-Craft Industries, Inc., . The Williams Act filled this regulatory gap. The Act imposes several requirements. First, it requires that upon the commencement of the tender offer, the offeror file with the SEC, publish or send to the shareholders of the target company, and furnish to the target company detailed information about the offer. 15 U.S.C. 78n(d)(1); 17 CFR 240.24d-3 (1981). The offeror must disclose information about its background and identity; the source of the funds to be used in making the purchase; the purpose of the purchase, including any plans to liquidate the company or make major changes in its corporate structure; and the extent of the offeror's holdings in the target company. 15 U.S.C. 78m(d)(1) (1976 ed., Supp. IV); 17 CFR 240.13d-1 (1981). See also n. 2, supra. Second, stockholders who tender their shares may withdraw them during the first 7 days of a tender offer and if the offeror has not yet purchased their shares, at any time after 60 days from the commencement of the offer. 15 U.S.C. 78n(d)(5).7 Third, all shares tendered must be purchased for the same price; if an offering price is increased, those who have already tendered receive the benefit of the increase. 15 U.S.C. 78n(d)(7).8 There is no question that in imposing these requirements, Congress intended to protect investors. Piper v. Chris-Craft Industries, Inc., supra, at 35; Rondeau v. Mosinee Paper Corp., ; S. Rep. No. 550, 90th Cong., 1st Sess., 3-4 (1967) (Senate Report). But it is also crystal clear that a major aspect of the effort to protect the investor was to avoid favoring either management or the takeover bidder. As we noted in Piper, the disclosure provisions originally embodied in S. 2731 "were avowedly pro-management in the target company's efforts to defeat takeover bids." 430 U.S., at 30. But Congress became convinced "that takeover bids should not be discouraged because they serve a useful purpose in providing a check on entrenched but inefficient management." Senate Report, at 3.9 It also became apparent that entrenched management was often successful in defeating takeover attempts. As the legislation evolved, therefore, Congress disclaimed any "intention to provide a weapon for management to discourage takeover bids," Rondeau v. Mosinee Paper Corp., supra, at 58, and expressly embraced a policy of neutrality. As Senator Williams explained: "We have taken extreme care to avoid tipping the scales either in favor of management or in favor of the person making the takeover bids." 113 Cong. Rec. 24664 (1967). This policy of "evenhandedness," Piper v. Chris-Craft Industries, Inc., supra, at 31, represented a conviction that neither side in the contest should be extended additional advantages vis-a-vis the investor, who if furnished with adequate information would be in a position to make his own informed choice. We, therefore, agree with the Court of Appeals that Congress sought to protect the investor not only by furnishing him with the necessary information but also by withholding from management or the bidder any undue advantage that could frustrate the exercise of an informed choice. 633 F.2d, at 496.To implement this policy of investor protection while maintaining the balance between management and the bidder, Congress required the latter to file with the Commission and furnish the company and the investor with all information adequate to the occasion. With that filing, the offer could go forward, stock could be tendered and purchased, but a stockholder was free within a specified time to withdraw his tendered shares. He was also protected if the offer was increased. Looking at this history as a whole, it appears to us, as it did to the Court of Appeals, that Congress intended to strike a balance between the investor, management, and the takeover bidder. The bidder was to furnish the investor and the target company with adequate information but there was no "inten[tion] to do ... more than give incumbent management an opportunity to express and explain its position." Rondeau v. Mosinee Paper Corp., supra, at 58. Once that opportunity was extended, Congress anticipated that the investor, if he so chose, and the takeover bidder should be free to move forward within the time frame provided by Congress.IVThe Court of Appeals identified three provisions of the Illinois Act that upset the careful balance struck by Congress and which therefore stand as obstacles to the accomplishment and execution of the full purposes and objectives of Congress. We agree with the Court of Appeals in all essential respects.AThe Illinois Act requires a tender offeror to notify the Secretary of State and the target company of its intent to make a tender offer and the material terms of the offer 20 business days before the offer becomes effective. Ill. Rev. Stat., ch. 121 1/2, §§ 137.54.E, 137.54.B (1979). During that time, the offeror may not communicate its offer to the shareholders. § 137.54.A. Meanwhile, the target company is free to disseminate information to its shareholders concerning the impending offer. The contrast with the Williams Act is apparent. Under that Act, there is no precommencement notification requirement; the critical date is the date a tender offer is "first published or sent or given to security holders." 15 U.S.C. 78n(d)(1). See also 17 CFR 240.14d-2 (1981).We agree with the Court of Appeals that by providing the target company with additional time within which to take steps to combat the offer, the precommencement notification provisions furnish incumbent management with a powerful tool to combat tender offers, perhaps to the detriment of the stockholders who will not have an offer before them during this period.10 These consequences are precisely what Congress determined should be avoided, and for this reason, the precommencement notification provision frustrates the objectives of the Williams Act.It is important to note in this respect that in the course of events leading to the adoption of the Williams Act, Congress several times refused to impose a precommencement disclosure requirement. In October 1965, Senator Williams introduced S. 2731, a bill which would have required a bidder to notify the target company and file a public statement with the Securities and Exchange Commission at least 20 days before commencement of a cash tender offer for more than 5% of a class of the target company's securities. 111 Cong. Rec. 28259 (1965). The Commission commented on the bill and stated that "the requirement of a 20-day advance notice to the issuer and the Commission is unnecessary for the protection of security holders ... ." 112 Cong. Rec. 19005 (1966). Senator Williams introduced a new bill in 1967, S. 510, which provided for a confidential filing by the tender offeror with the Commission five days prior to the commencement of the offer. S. 510 was enacted as the Williams Act after elimination of the advance disclosure requirement. As the Senate Report explained:"At the hearings it was urged that this prior review was not necessary and in some cases might delay the offer when time was of the essence. In view of the authority and responsibility of the Securities and Exchange Commission to take appropriate action in the event that inadequate or misleading information is disseminated to the public to solicit acceptance of a tender offer, the bill as approved by the committee requires only that the statement be on file with the Securities and Exchange Commission at the time the tender offer is first made to the public." Senate Report, at 4. Congress rejected another precommencement notification proposal during deliberations on the 1970 amendments to the Williams Act.11 BFor similar reasons, we agree with the Court of Appeals that the hearing provisions of the Illinois Act frustrate the congressional purpose by introducing extended delay into the tender offer process. The Illinois Act allows the Secretary of State to call a hearing with respect to any tender offer subject to the Act, and the offer may not proceed until the hearing is completed. Ill. Rev. Stat., ch. 121 1/2, §§ 137.57.A and B (1979). The Secretary may call a hearing at any time prior to the commencement of the offer, and there is no deadline for the completion of the hearing. §§ 137.57.C and D. Although the Secretary is to render a decision within 15 days after the conclusion of the hearing, that period may be extended without limitation. Not only does the Secretary of State have the power to delay a tender offer indefinitely, but incumbent management may also use the hearing provisions of the Illinois Act to delay a tender offer. The Secretary is required to call a hearing if requested to do so by, among other persons, those who are located in Illinois "as determined by post office address as shown on the records of the target company and who hold of record or beneficially, or both, at least 10% of the outstanding shares of any class of equity securities which is the subject of the take-over offer." § 137.57.A. Since incumbent management in many cases will control, either directly or indirectly, 10% of the target company's shares, this provision allows management to delay the commencement of an offer by insisting on a hearing. As the Court of Appeals observed, these provisions potentially afford management a "powerful weapon to stymie indefinitely a takeover." 633 F.2d, at 494.12 In enacting the Williams Act, Congress itself "recognized that delay can seriously impede a tender offer" and sought to avoid it. Great Western United Corp. v. Kidwell, 577 F.2d 1256, 1277 (CA5 1978); Senate Report, at 4.13 Congress reemphasized the consequences of delay when it enacted the Hart-Scott-Radino Antitrust Improvements Act of 1976, Pub. L. 94-435, 90 Stat. 1397, 15 U.S.C. 12 et seq."[I]t is clear that this short waiting period [the 10-day period for proration provided for by 14(d)(6) of the Securities Exchange Act, which applies only after a tender offer is commenced] was founded on congressional concern that a longer delay might unduly favor the target firm's incumbent management, and permit them to frustrate many pro-competitive cash tenders. This ten-day waiting period thus underscores the basic purpose of the Williams Act - to maintain a neutral policy towards cash tender offers, by avoiding lengthy delays that might discourage their chances for success." H. R. Rep. No. 94-1373, p. 12 (1976).14 As we have said, Congress anticipated that investors and the takeover offeror would be free to go forward without unreasonable delay. The potential for delay provided by the hearing provisions upset the balance struck by Congress by favoring management at the expense of stockholders. We therefore agree with the Court of Appeals that these hearing provisions conflict with the Williams Act.CThe Court of Appeals also concluded that the Illinois Act is pre-empted by the Williams Act insofar as it allows the Secretary of State of Illinois to pass on the substantive fairness of a tender offer. Under § 137.57.E of the Illinois law, the Secretary is required to deny registration of a takeover offer if he finds that the offer "fails to provide full and fair disclosure to the offerees ... or that the take-over offer is inequitable ..." (emphasis added).15 The Court of Appeals understood the Williams Act and its legislative history to indicate that Congress intended for investors to be free to make their own decisions. We agree. Both the House and Senate Reports observed that the Act was "designed to make the relevant facts known so that shareholders have a fair opportunity to make their decision." H. R. Rep. No. 1711, 90th Cong., 2d Sess., 4 (1968); Senate Report, at 3. Thus, as the Court of Appeals said, "[t]he state thus offers investor protection at the expense of investor autonomy - an approach quite in conflict with that adopted by Congress." 633 F.2d, at 494.VThe Commerce Clause provides that "Congress shall have Power ... [t]o regulate Commerce ... among the several States." U.S. Const., Art. I, 8, cl. 3. "[A]t least since Cooley v. Board of Wardens, 12 How. 299 (1852), it has been clear that `the Commerce Clause... . even without implementing legislation by Congress is a limitation upon the power of the States.'" Great Atlantic & Pacific Tea Co. v. Cottrell, , quoting Freeman v. Hewitt, . See also Lewis v. BT Investment Managers, Inc., . Not every exercise of state power with some impact on interstate commerce is invalid. A state statute must be upheld if it "regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental ... unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., , citing Huron Cement Co. v. Detroit, . The Commerce Clause, however, permits only incidental regulation of interstate commerce by the States; direct regulation is prohibited. Shafer v. Farmers Grain Co., . See also Pike v. Bruce Church, Inc., supra, at 142. The Illinois Act violates these principles for two reasons. First, it directly regulates and prevents, unless its terms are satisfied, interstate tender offers which in turn would generate interstate transactions. Second, the burden the Act imposes on interstate commerce is excessive in light of the local interests the Act purports to further. AStates have traditionally regulated intrastate securities transactions,16 and this Court has upheld the authority of States to enact "blue-sky" laws against Commerce Clause challenges on several occasions. Hall v. Geiger-Jones Co., ; Caldwell v. Sioux Falls Stock Yards Co., ; Merrick v. N. W. Halsey & Co., . The Court's rationale for upholding blue-sky laws was that they only regulated transactions occurring within the regulating States. "The provisions of the law ... apply to dispositions of securities within the State and while information of those issued in other States and foreign countries is required to be filed ..., they are only affected by the requirement of a license of one who deals with them within the State... . Such regulations affect interstate commerce in [securities] only incidentally." Hall v. Geiger-Jones Co., supra, at 557-558 (citations omitted). Congress has also recognized the validity of such laws governing interstate securities transactions in 28(a) of the Securities Exchange Act, 15 U.S.C. 78bb(a), a provision "designed to save state blue-sky laws from pre-emption." Leroy v. Great Western United Corp., , n. 13 (1979).The Illinois Act differs substantially from state blue-sky laws in that it directly regulates transactions which take place across state lines, even if wholly outside the State of Illinois. A tender offer for securities of a publicly held corporation is ordinarily communicated by the use of the mails or other means of interstate commerce to shareholders across the country and abroad. Securities are tendered and transactions closed by similar means. Thus, in this case, MITE Corp., the tender offeror, is a Delaware corporation with principal offices in Connecticut. Chicago Rivet is a publicity held Illinois corporation with shareholders scattered around the country, 27% of whom live in Illinois. MITE's offer to Chicago Rivet's shareholders, including those in Illinois, necessarily employed interstate facilities in communicating its offer, which, if accepted, would result in transactions occurring across state lines. These transactions would themselves be interstate commerce. Yet the Illinois law, unless complied with, sought to prevent MITE from making its offer and concluding interstate transactions not only with Chicago Rivet's stockholders living in Illinois, but also with those living in other States and having no connection with Illinois. Indeed, the Illinois law on its face would apply even if not a single one of Chicago Rivet's shareholders were a resident of Illinois, since the Act applies to every tender offer for a corporation meeting two of the following conditions: the corporation has its principal executive office in Illinois, is organized under Illinois laws, or has at least 10% of its stated capital and paid-in surplus represented in Illinois. Ill. Rev. Stat., ch. 121 1/2, § 137.52-10(2) (1979). Thus the Act could be applied to regulate a tender offer which would not affect a single Illinois shareholder.It is therefore apparent that the Illinois statute is a direct restraint on interstate commerce and that it has a sweeping extraterritorial effect. Furthermore, if Illinois may impose such regulations, so may other States; and interstate commerce in securities transactions generated by tender offers would be thoroughly stifled. In Shafer v. Farmers Grain Co., supra, at 199, the Court held that "a state statute which by its necessary operation directly interferes with or burdens [interstate] commerce is a prohibited regulation and invalid, regardless of the purpose with which it was enacted." See also Hughes v. Alexandria Scrap Corp., . The Commerce Clause also precludes the application of a state statute to commerce that takes place wholly outside of the State's borders, whether or not the commerce has effects within the State. In Southern Pacific Co. v. Arizona, , the Court struck down on Commerce Clause grounds a state law where the "practical effect of such regulation is to control [conduct] beyond the boundaries of the state ... ." The limits on a State's power to enact substantive legislation are similar to the limits on the jurisdiction of state courts. In either case, "any attempt `directly' to assert extraterritorial jurisdiction over persons or property would offend sister States and exceed the inherent limits of the State's power." Shaffer v. Heitner, .Because the Illinois Act purports to regulate directly and to interdict interstate commerce, including commerce wholly outside the State, it must be held invalid as were the laws at issue in Shafer v. Farmers Grain Co. and Southern Pacific.BThe Illinois Act is also unconstitutional under the test of Pike v. Bruce Church, Inc., 397 U.S., at 142, for even when a state statute regulates interstate commerce indirectly, the burden imposed on that commerce must not be excessive in relation to the local interests served by the statute. The most obvious burden the Illinois Act imposes on interstate commerce arises from the statute's previously described nationwide reach which purports to give Illinois the power to determine whether a tender offer may proceed anywhere.The effects of allowing the Illinois Secretary of State to block a nationwide tender offer are substantial. Shareholders are deprived of the opportunity to sell their shares at a premium. The reallocation of economic resources to their highest valued use, a process which can improve efficiency and competition, is hindered. The incentive the tender offer mechanism provides incumbent management to perform well so that stock prices remain high is reduced. See Easterbrook & Fischel, The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv. L. Rev. 1161, 1173-1174 (1981); Fischel, Efficient Capital Market Theory, the Market for Corporate Control, and the Regulation of Cash Tender Offers, 57 Texas L. Rev. 1, 5, 27-28, 45 (1978); H. R. Rep. No. 94-1373, p. 12 (1976).Appellant claims the Illinois Act furthers two legitimate local interests. He argues that Illinois seeks to protect resident security holders and that the Act merely regulates the internal affairs of companies incorporated under Illinois law. We agree with the Court of Appeals that these asserted interests are insufficient to outweigh the burdens Illinois imposes on interstate commerce.While protecting local investors is plainly a legitimate state objective, the State has no legitimate interest in protecting nonresident shareholders. Insofar as the Illinois law burdens out-of-state transactions, there is nothing to be weighed in the balance to sustain the law. We note, furthermore, that the Act completely exempts from coverage a corporation's acquisition of its own shares. Ill. Rev. Stat., ch. 121 1/2, § 137.52-9(4) (1979). Thus Chicago Rivet was able to make a competing tender offer for its own stock without complying with the Illinois Act, leaving Chicago Rivet's shareholders to depend only on the protections afforded them by federal securities law, protections which Illinois views as inadequate to protect investors in other contexts. This distinction is at variance with Illinois' asserted legislative purpose, and tends to undermine appellant's justification for the burdens the statute imposes on interstate commerce.We are also unconvinced that the Illinois Act substantially enhances the shareholders' position. The Illinois Act seeks to protect shareholders of a company subject to a tender offer by requiring disclosures regarding the offer, assuring that shareholders have adequate time to decide whether to tender their shares, and according shareholders withdrawal, proration, and equal consideration rights. However, the Williams Act provides these same substantive protections, compare Ill. Rev. Stat., ch. 121 1/2, §§ 137.59.C, D, and E (1979) (withdrawal, proration, and equal consideration rights), with 15 U.S.C. 78n(d)(5), (6), and (7) and 17 CFR 240.14d-7 (1981) (same). As the Court of Appeals noted, the disclosures required by the Illinois Act which go beyond those mandated by the Williams Act and the regulations pursuant to it may not substantially enhance the shareholders' ability to make informed decisions. 633 F.2d, at 500. It also was of the view that the possible benefits of the potential delays required by the Act may be outweighed by the increased risk that the tender offer will fail due to defensive tactics employed by incumbent management. We are unprepared to disagree with the Court of Appeals in these respects, and conclude that the protections the Illinois Act affords resident security holders are, for the most part, speculative.Appellant also contends that Illinois has an interest in regulating the internal affairs of a corporation incorporated under its laws. The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation's internal affairs - matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders - because otherwise a corporation could be faced with conflicting demands. See Restatement (Second) of Conflict of Laws 302, Comment b, pp. 307-308 (1971). That doctrine is of little use to the State in this context. Tender offers contemplate transfers of stock by stockholders to a third party and do not themselves implicate the internal affairs of the target company. Great Western United Corp. v. Kidwell, 577 F.2d, at 1280, n. 53; Restatement, supra, 302, Comment e, p. 310. Furthermore, the proposed justification is somewhat incredible since the Illinois Act applies to tender offers for any corporation for which 10% of the outstanding shares are held by Illinois residents, Ill. Rev. Stat., ch. 121 1/2, § 137.52-10 (1979). The Act thus applies to corporations that are not incorporated in Illinois and have their principal place of business in other States. Illinois has no interest in regulating the internal affairs of foreign corporations.We conclude with the Court of Appeals that the Illinois Act imposes a substantial burden on interstate commerce which outweighs its putative local benefits. It is accordingly invalid under the Commerce Clause.The judgment of the Court of Appeals is Affirmed. Fn THE CHIEF JUSTICE joins the opinion in its entirety; JUSTICE BLACKMUN joins Parts I, II, III, and IV; JUSTICE POWELL joins Parts I and V-B; and JUSTICE STEVENS and JUSTICE O'CONNOR join Parts I, II, and V. |
0 | Per Curiam. Police officers responded to a complaint of a disturbance near Allen Road in Brownstown, Michigan.* Officer Christopher Goolsby later testified that, as he and his partner approached the area, a couple directed them to a residence where a man was "going crazy." Docket No. 276439, 2008 WL 786515, *1 (Mich. App., Mar. 25, 2008) (per curiam) (alteration and internal quotation marks omitted). Upon their arrival, the officers found a household in considerable chaos: a pickup truck in the driveway with its front smashed, damaged fenceposts along the side of the property, and three broken house windows, the glass still on the ground outside. The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house. (It is disputed whether they noticed this immediately upon reaching the house, but undisputed that they noticed it before the allegedly unconstitutional entry.) Through a window, the officers could see respondent, Jeremy Fisher, inside the house, screaming and throwing things. The back door was locked, and a couch had been placed to block the front door. The officers knocked, but Fisher refused to answer. They saw that Fisher had a cut on his hand, and they asked him whether he needed medical attention. Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant. Officer Goolsby then pushed the front door partway open and ventured into the house. Through the window of the open door he saw Fisher pointing a long gun at him. Officer Goolsby withdrew. Fisher was charged under Michigan law with assault with a dangerous weapon and possession of a firearm during the commission of a felony. The trial court concluded that Officer Goolsby violated the Fourth Amendment when he entered Fisher's house, and granted Fisher's motion to suppress the evidence obtained as a result — that is, Officer Goolsby's statement that Fisher pointed a rifle at him. The Michigan Court of Appeals initially remanded for an evidentiary hearing, see Docket No. 256027, 2005 WL 3481454 (Dec. 20, 2005) (per curiam), after which the trial court reinstated its order. The Court of Appeals then affirmed over a dissent by Judge Talbot. See 2008 WL 786515, at *2; id., at *2-*5. The Michigan Supreme Court granted leave to appeal, but, after hearing oral argument, it vacated its prior order and denied leave instead; three justices, however, would have taken the case and reversed on the ground that the Court of Appeals misapplied the Fourth Amendment. See 483 Mich. 1007, 765 N. W. 2d 19 (2009). Because the decision of the Michigan Court of Appeals is indeed contrary to our Fourth Amendment case law, particularly Brigham City v. Stuart, 547 U. S. 398 (2006), we grant the State's petition for certiorari and reverse. "[T]he ultimate touchstone of the Fourth Amendment," we have often said, "is 'reasonableness.' " Id., at 403. Therefore, although "searches and seizures inside a home without a warrant are presumptively unreasonable," Groh v. Ramirez, 540 U. S. 551, 559 (2004) (internal quotation marks omitted), that presumption can be overcome. For example, "the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable." Mincey v. Arizona, 437 U. S. 385, 393-394 (1978). Brigham City identified one such exigency: "the need to assist persons who are seriously injured or threatened with such injury." 547 U. S., at 403. Thus, law enforcement officers "may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." Ibid. This "emergency aid exception" does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. Id., at 404-405. It requires only "an objectively reasonable basis for believing," id., at 406, that "a person within [the house] is in need of immediate aid," Mincey, supra, at 392. Brigham City illustrates the application of this standard. There, police officers responded to a noise complaint in the early hours of the morning. "As they approached the house, they could hear from within an altercation occurring, some kind of fight." 547 U. S., at 406 (internal quotation marks omitted). Following the tumult to the back of the house whence it came, the officers saw juveniles drinking beer in the backyard and a fight unfolding in the kitchen. They watched through the window as a juvenile broke free from the adults restraining him and punched another adult in the face, who recoiled to the sink, spitting blood. Ibid. Under these circumstances, we found it "plainly reasonable" for the officers to enter the house and quell the violence, for they had "an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning." Ibid. A straightforward application of the emergency aid exception, as in Brigham City, dictates that the officer's entry was reasonable. Just as in Brigham City, the police officers here were responding to a report of a disturbance. Just as in Brigham City, when they arrived on the scene they encountered a tumultuous situation in the house — and here they also found signs of a recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers could see violent behavior inside. Although Officer Goolsby and his partner did not see punches thrown, as did the officers in Brigham City, they did see Fisher screaming and throwing things. It would be objectively reasonable to believe that Fisher's projectiles might have a human target (perhaps a spouse or a child), or that Fisher would hurt himself in the course of his rage. In short, we find it as plain here as we did in Brigham City that the officer's entry was reasonable under the Fourth Amendment. The Michigan Court of Appeals, however, thought the situation "did not rise to a level of emergency justifying the warrantless intrusion into a residence." 2008 WL 786515, at *2. Although the Court of Appeals conceded that "there was evidence an injured person was on the premises," it found it significant that "the mere drops of blood did not signal a likely serious, life-threatening injury." Ibid. The court added that the cut Officer Goolsby observed on Fisher's hand "likely explained the trail of blood" and that Fisher "was very much on his feet and apparently able to see to his own needs." Ibid. Even a casual review of Brigham City reveals the flaw in this reasoning. Officers do not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception. The only injury police could confirm in Brigham City was the bloody lip they saw the juvenile inflict upon the adult. Fisher argues that the officers here could not have been motivated by a perceived need to provide medical assistance, since they never summoned emergency medical personnel. This would have no bearing, of course, upon their need to assure that Fisher was not endangering someone else in the house. Moreover, even if the failure to summon medical personnel conclusively established that Goolsby did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured (which is doubtful), the test, as we have said, is not what Goolsby believed, but whether there was "an objectively reasonable basis for believing" that medical assistance was needed, or persons were in danger, Brigham City, supra, at 406; Mincey, supra, at 392. It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency. It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here. Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances. But "[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties." Brigham City, supra, at 406. It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.* * * The petition for certiorari is granted. The judgment of the Michigan Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.MICHIGAN v. JEREMY FISHERon petition for writ of certiorari to the court of appeals of michiganNo. 09-91. Decided December 7, 2009 Justice Stevens, with whom Justice Sotomayor joins, dissenting. On October 31, 2003, Jeremy Fisher pointed a rifle at Officer Christopher Goolsby when Goolsby attempted to force his way into Fisher's home without a warrant. Fisher was charged with assault with a dangerous weapon and possession of a dangerous weapon during the commission of a felony. The charges were dismissed after the trial judge granted a motion to suppress evidence of the assault because it was the product of Goolsby's unlawful entry. In 2005 the Michigan Court of Appeals held that the trial court had erred because it had decided the suppression motion without conducting a full evidentiary hearing. On remand, the trial court conducted such a hearing and again granted the motion to suppress. As a matter of Michigan law it is well settled that police officers may enter a home without a warrant "when they reasonably believe that a person within is in need of immediate aid." People v. Davis, 442 Mich. 1, 25, 497 N. W. 2d 910, 921 (1993). We have stated the rule in the same way under federal law, Mincey v. Arizona, 437 U. S. 385, 392 (1978), and have explained that a warrantless entry is justified by the " 'need to protect or preserve life or avoid serious injury,' " ibid. The State bears the burden of proof on that factual issue and relied entirely on the testimony of Officer Goolsby in its attempt to carry that burden. Since three years had passed, Goolsby was not sure about certain facts — such as whether Fisher had a cut on his hand — but he did remember that Fisher repeatedly swore at the officers and told them to get a warrant, and that Fisher was screaming and throwing things. Goolsby also testified that he saw "mere drops" of blood outside Fisher's home, No. 276439, 2008 WL 786515, *2 (Mich. App., Mar. 25, 2008) (per curiam) (summarizing Goolsby's testimony), and that he did not ask whether anyone else was inside. Goolsby did not testify that he had any reason to believe that anyone else was in the house. Thus, the factual question was whether Goolsby had "an objectively reasonable basis for believing that [Fisher was] seriously injured or imminently threatened with such injury." Brigham City v. Stuart, 547 U. S. 398, 400 (2006). After hearing the testimony, the trial judge was "even more convinced" that the entry was unlawful. Tr. 29 (Dec. 19, 2006). He noted the issue was "whether or not there was a reasonable basis to [enter the house] or whether [Goolsby] was just acting on some possibilities," id., at 22, and evidently found the record supported the latter rather than the former. He found the police decision to leave the scene and not return for several hours — without resolving any potentially dangerous situation and without calling for medical assistance — inconsistent with a reasonable belief that Fisher was in need of immediate aid. In sum, the one judge who heard Officer Goolsby's testimony was not persuaded that Goolsby had an objectively reasonable basis for believing that entering Fisher's home was necessary to avoid serious injury. The Michigan Court of Appeals affirmed, concluding that the State had not met its burden. Perhaps because one judge dissented, the Michigan Supreme Court initially granted an application for leave to appeal. After considering briefs and oral argument, however, the majority of that Court vacated its earlier order because it was "no longer persuaded that the questions presented should be reviewed by this Court." 483 Mich. 1007, 765 N. W. 2d 19 (2009). Today, without having heard Officer Goolsby's testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer's actions, particularly in a case tried in a state court. I therefore respectfully dissent. FOOTNOTESFootnote * We have taken the facts from the opinion of the Michigan Court of Appeals. Except where indicated, the parties do not dispute the facts. |
7 | A provision of California's alcoholic beverage laws states that a "licensed importer shall not purchase or accept delivery of any brand of distilled spirits unless he is designated as an authorized importer of such brand by the brand owner or his authorized agent" (designation statute). The statute apparently was enacted in response to the perceived extraterritorial effects of Oklahoma's "open wholesaling" statutes, whereby a licensed California importer who was unable to obtain distilled spirits through the distiller's established distribution system could obtain them from Oklahoma wholesalers. Prior to the designation statute's effective date, respondents sought an extraordinary writ from the California Court of Appeal to enjoin the enforcement of the statute. The court entered judgment for respondents, holding that the conduct contemplated by the statute was per se illegal under 1 of the Sherman Act because it gave distillers the unfettered power to restrain competition by merely deciding who may or may not compete in handling the distillers' brands, and that thus the statute on its face was invalid pursuant to the Supremacy Clause of the Federal Constitution.Held: 1. California's designation statute is not invalid on its face as being pre-empted by the Sherman Act. Pp. 659-662. (a) A state statute, when considered in the abstract, may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of those laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation. If the activity addressed by the statute does not fall into that category, and therefore must be analyzed under the rule of reason, the statute cannot be condemned in the abstract. Pp. 659-661. (b) A distiller's invocation of California's statute would not be subject in all cases to a per se rule of illegality under the Sherman Act. A manufacturer's use of vertical nonprice restraints is not per se illegal. Continental T. V., Inc. v. GTE Sylvania Inc., . California's designation statute merely enforces the distiller's decision to restrain intrabrand competition, preventing an unauthorized wholesaler from obtaining the distiller's products from outside the distiller's established distribution chain. The effect of the statute is simply to counteract the perceived extraterritorial effects of Oklahoma's alcoholic beverage laws, thus restoring the distiller's ability to determine which wholesalers may import its products into California. While the manner in which a distiller utilizes the designation statute and the arrangements a distiller makes with its wholesalers will be subject to Sherman Act analysis under the rule of reason, there is no basis for condemning the statute itself by force of the Sherman Act. Pp. 661-662. 2. The California statute is not pre-empted by 5(a) of the Federal Alcohol Administration Act, which prohibits a distiller or wholesaler from establishing exclusive retail outlets. California's statute in no way requires exclusive retail outlets, and by its terms does not even require exclusive wholesale arrangements. Pp. 663-664. 3. The designation statute does not deny respondents due process of law. Respondents do not possess any constitutionally protected liberty or property interest in obtaining the distiller's permission to deal in its products, and thus the Due Process Clause is not offended by the wholesaler's inability to challenge the distiller's decisionmaking. P. 664. 4. Nor does the designation statute violate the Equal Protection Clause because it discriminates between designated and nondesignated wholesalers. The statute is rationally related to its legitimate purposes, enabling the distiller to place restraints on intrabrand competition in order to foster interbrand competition. P. 665. 108 Cal. App. 3d 348, 166 Cal. Rptr. 563, reversed and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which WHITE, J., joined, post, p. 665.[Footnote *] Together with No. 80-1030, Bohemian Distributing Co. v. Norman Williams Co. et al.; and No. 80-1052, Wine & Spirits Wholesalers of California v. Norman Williams Co. et al., also on certiorari to the same court.John R. McDonough argued the cause for petitioners in Nos. 80-1030 and 80-1052. With him on the briefs for petitioner in No. 80-1052 were Joseph A. Ball, Michael J. Maloney, James Polish, and William T. Chidlaw. Frank Rothman, Christina A. Snyder, George Miron, and Frank H. Easterbrook filed briefs for petitioner in No. 80-1030.George J. Roth, Deputy Attorney General of California, argued the cause for petitioner in No. 80-1012. With him on the brief was George Deukmejian, Attorney General.George G. Weickhardt argued the cause for respondents. With him on the brief was Leland R. Selna, Jr.Fn Fn Briefs of amici curiae urging reversal were filed by Noble K. Gregory and Parker A. Maddux for the Distilled Spirits Council of the United States, Inc.; by Ralph J. Savarese for Heublein, Inc.; and by Macdonald Flinn, Douglas W. Metz, and Abraham Tunick for the Wine and Spirits Wholesalers of America, Inc., et al. Harry M. Snyder filed a brief for the Consumers Union of United States, Inc., as amicus curiae urging affirmance.JUSTICE REHNQUIST delivered the opinion of the Court.Respondents in these cases obtained from the California Court of Appeal an extraordinary writ prohibiting the California Department of Alcoholic Beverage Control from enforcing an amendment to the State's liquor statutes. That court held that because the conduct contemplated by the amendment was per se illegal under the Sherman Act, the statute on its face was invalid pursuant to the Supremacy Clause of the United States Constitution. 108 Cal. App. 3d 348, 166 Cal. Rptr. 563 (1980). We conclude that the California Court of Appeal was mistaken in its application of antitrust and pre-emption principles, and we reverse its judgment.IAlcoholic beverages may be brought into California from outside the State for delivery or use within the State only if the beverages are consigned to a licensed importer. Cal. Bus. & Prof. Code Ann. 23661 (West Supp. 1982). In 1979, the California Legislature amended the State's alcoholic beverage control laws to provide that a "licensed importer shall not purchase or accept delivery of any brand of distilled spirits unless he is designated as an authorized importer of such brand by the brand owner or his authorized agent." 23672. This challenged statute, which was to become effective on January 1, 1980, is understandably referred to as a "designation statute."1 California apparently enacted its designation statute in response to the effects of Oklahoma's alcoholic beverage laws. At the time, Oklahoma's statutes were understood to require any distiller or brand owner selling its products to Oklahoma wholesalers to sell to all wholesalers on a nondiscriminatory basis.2 Because of the perceived extraterritorial effect of Oklahoma's "open-wholesaling" statutes, a licensed California importer who was unable to obtain distilled spirits through the distiller's established distribution system could obtain them from Oklahoma wholesalers. As a result, a distiller who desired to sell its products to Oklahoma wholesalers was unable to rely on contractual undertakings to determine which California wholesalers would handle its products. California's designation statute, therefore, sought to close off the "Oklahoma connection" to California importers not authorized by the distiller to deal in its products.3 Prior to the effective date of the designation statute, respondents, liquor importers who were benefiting from the "Oklahoma connection," sought an extraordinary writ from the California Court of Appeal enjoining the enforcement of the designation statute. The Court of Appeal agreed with respondents that the designation statute on its face conflicted with 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1.4 According to that court, the designation statute would result, in all cases, in a per se violation of the Sherman Act, because it "gives brand owners the unfettered power to restrain competition ... by merely deciding who may and who may not compete." 108 Cal. App. 3d, at 356, 166 Cal. Rptr., at 569. The Court of Appeal distinguished Continental T. V., Inc. v. GTE Sylvania Inc., , in which we held that vertical nonprice restraints are to be judged under the "rule of reason" rather than under a per se rule of illegality, on the ground that respondents did not attack the distiller's decision to refuse to do business with them, but "the state provided authority of the distillers to prohibit them from trading with others." 108 Cal. App. 3d, at 357, 166 Cal. Rptr., at 570.The Supreme Court of California denied review. We granted certiorari, , and now reverse. IIAIn determining whether the Sherman Act pre-empts a state statute, we apply principles similar to those which we employ in considering whether any state statute is preempted by a federal statute pursuant to the Supremacy Clause. As in the typical pre-emption case, the inquiry is whether there exists an irreconcilable conflict between the federal and state regulatory schemes. The existence of a hypothetical or potential conflict is insufficient to warrant the pre-emption of the state statute. A state regulatory scheme is not pre-empted by the federal antitrust laws simply because in a hypothetical situation a private party's compliance with the statute might cause him to violate the antitrust laws. A state statute is not pre-empted by the federal antitrust laws simply because the state scheme might have an anticompetitive effect. See, e. g., New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., ; Exxon Corp. v. Governor of Maryland, ; Joseph E. Seagram & Sons, Inc. v. Hostetter, .A party may successfully enjoin the enforcement of a state statute only if the statute on its face irreconcilably conflicts with federal antitrust policy. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., , we examined a statute that required members of the California wine industry to file fair trade contracts or price schedules with the State, and provided that if a wine producer had not set prices through a fair trade contract, wholesalers must post a resale price schedule for that producer's brands. We held that the statute facially conflicted with the Sherman Act because it mandated resale price maintenance, an activity that has long been regarded as a per se violation5 of the Sherman Act. Id., at 102-103; see Dr. Miles Medical Co. v. John D. Park & Sons Co., .By contrast, in Joseph E. Seagram & Sons, Inc. v. Hostetter, supra, we rejected a facial attack upon 9 of New York's Alcoholic Beverage Control Law,6 which required retailers and wholesalers to file monthly price schedules with the State Liquor Authority accompanied by an affirmation that the prices charged were no higher than the lowest price at which sales were made anywhere in the United States during the preceding month. Id., at 39-40. The Court found no clear repugnancy between 9 and the federal antitrust laws:"The bare compilation, without more, of price information on sales to wholesalers and retailers to support the affirmations filed with the State Liquor Authority would not of itself violate the Sherman Act. Section 9 imposes no irresistible economic pressure on the appellants to violate the Sherman Act in order to comply with the requirements of 9. On the contrary, 9 appears firmly anchored to the assumption that the Sherman Act will deter any attempts by the appellants to preserve their New York price level by conspiring to raise the prices at which liquor is sold elsewhere in the country... . "Although it is possible to envision circumstances under which price discriminations proscribed by the Robinson-Patman Act might be compelled by 9, the existence of such potential conflicts is entirely too speculative in the present posture of this case ... ." Id., at 45-46 (citations omitted). Our decisions in this area instruct us, therefore, that a state statute, when considered in the abstract, may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute. Such condemnation will follow under 1 of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation. If the activity addressed by the statute does not fall into that category, and therefore must be analyzed under the rule of reason, the statute cannot be condemned in the abstract. Analysis under the rule of reason requires an examination of the circumstances underlying a particular economic practice, and therefore does not lend itself to a conclusion that a statute is facially inconsistent with federal antitrust laws.It remains for us to determine whether a distiller's invocation of the designation statute would be subject in all cases to a per se rule of illegality under the Sherman Act.BWe held in GTE Sylvania that a manufacturer's use of vertical nonprice restraints is not per se illegal. Because restraints on intrabrand competition may promote interbrand competition, we concluded that nonprice vertical restraints should be scrutinized under the rule of reason. 433 U.S., at 57-59. After our decision in GTE Sylvania, it cannot be said that every attempt by a manufacturer to restrain competition in its own products is illegal under the Sherman Act.California's designation statute merely enforces the distiller's decision to restrain intrabrand competition. It permits the distiller to designate which wholesalers may import the distiller's products into the State. It prevents an unauthorized wholesaler from obtaining the distiller's products from outside the distiller's established distribution chain. The designation statute does not require the distiller to impose vertical restraints of any kind; that is a matter for it to determine. The number of importers which may be designated by the distiller is not limited; the designated importer is not required to sell the imported brand to retailers within a specified area or from a specified location within the State.It is irrelevant for our purposes that the distiller's ability to restrict intrabrand competition in California has the imprimatur of a state statute. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S., at 110-111.7 The effect of the statute is simply to counteract the perceived extraterritorial effects of Oklahoma's alcoholic beverage laws, which, as once understood, operated to deprive the distiller of control over its distribution system nationwide. Thus, California's designation statute merely restored what Oklahoma had taken away: the distiller's ability to determine which wholesalers may import its products into California.In these respects, therefore, we find these cases to be much like Joseph E. Seagram & Sons, Inc. v. Hostetter, . As in Hostetter, upholding the validity of the designation statute will not insulate a distiller's invocation of the statute from scrutiny under the Sherman Act. The manner in which a distiller utilizes the designation statute and the arrangements a distiller makes with its wholesalers will be subject to Sherman Act analysis under the rule of reason.8 There is no basis, however, for condemning the statute itself by force of the Sherman Act.9 IIIRespondents seek to support the judgment of the Court of Appeal on three federal grounds not considered by the court below. None of these contentions have merit.ARespondents contend that the California designation statute is pre-empted by 5(a) of the Federal Alcohol Administration Act, 49 Stat. 981, as amended, 27 U.S.C. 205(a).10 Section 5(a) prohibits a distiller or wholesaler from establishing exclusive retail outlets. See S. Rep. No. 1215, 74th Cong., 1st Sess., 6-7 (1935); H. R. Rep. No. 1542, 74th Cong., 1st Sess., 10-11 (1935). In other words, 5(a) prohibits a distiller or wholesaler from requiring a retailer to buy only the distiller's or wholesaler's products to the exclusion of the products of other distillers or wholesalers. The statute does not prohibit a distiller from requiring its wholesalers to purchase the distiller's products from the distiller itself rather than from a third party.11 California's statute in no way requires exclusive retail outlets. By its terms, the designation statute does not even require exclusive wholesale arrangements. One might be able to hypothesize an arrangement enforced by the designation statute that might be prohibited by 5(a), but this is insufficient to invalidate a state statute pursuant to the Supremacy Clause. "To hold otherwise would be to ignore the teaching of this Court's decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists." Huron Portland Cement Co. v. Detroit, .BRespondents contend that the designation statute denies them due process of law. According to respondents, California has established a "second tier of private licensing over the state's licensing process," and therefore procedural due process protections apply with regard to the distiller's designation decisions. Brief for Respondents 36.We find this contention without merit. The designation statute merely enforces the distiller's decision to deny permission to a California wholesaler to deal in the distiller's products. We do not think that respondents possess any constitutionally protected liberty or property interest in obtaining the distiller's permission. Thus, the Due Process Clause is not offended by the wholesaler's inability to challenge the distiller's decisionmaking. What respondents are really challenging is the California Legislature's decision to give such a power to the distiller without establishing any criteria to govern the exercise of that power. The Due Process Clause does not authorize this Court to assess the wisdom of the California Legislature's decision. See Ferguson v. Skrupa, . CFinally, respondents contend that the designation statute violates the Equal Protection Clause because it discriminates between designated and nondesignated wholesalers. There can be little doubt but that the designation statute is rationally related to the statute's legitimate purposes. Minnesota v. Clover Leaf Creamery Co., . The designation statute enables the distiller to place restraints on intrabrand competition in order to foster interbrand competition. It is not our province to determine whether or not California consumers would be better off had the California Legislature decided not to close off the "Oklahoma connection." See Vance v. Bradley, .The judgment of the Court of Appeal is reversed, and these cases are remanded to that court for proceedings not inconsistent with this opinion. It is so ordered. |
11 | Before enactment of the Tax Reform Act of 1986, the Internal Revenue Code gave property and casualty (PC) insurers a full deduction for "loss reserves": estimated amounts of losses reported but not yet paid, losses incurred but not yet reported, and administrative costs of resolving claims. In each taxable year, not only losses paid, but the full amount of the loss reserves, reduced by the amount of the loss reserves claimed for the prior taxable year, were treated as a business expense. Section 1023 of the 1986 Act required PC insurers, beginning with the 1987 taxable year, to discount unpaid losses to present value when claiming them as a deduction. Requiring insurers to subtract undiscounted year-end 1986 reserves from discounted year-end 1987 reserves in computing 1987 losses would produce artificially low deductions, so the Act included a transitional rule requiring insurers to discount 1986 reserves as well. This rule changed the "method of accounting" for computing taxable income. To avoid requiring PC insurers to recognize as income the difference between undiscounted and discounted year-end 1986 loss reserves, the Act afforded them a "fresh start," to-wit, an exclusion from taxable income of the difference between undiscounted and discounted year-end 1986 loss reserves. §1023(e)(3)(A). It foreclosed the possibility that they would inflate reserves to manipulate the "fresh start" by excepting "reserve strengthening" from the exclusion. §1023(e)(3)(B). Treasury Regulation §1.846-3(c)(3)(ii) defines "reserve strengthening" to include any net additions to reserves. Respondent Commissioner determined that petitioner, Atlantic Mutual Insurance Co., and its subsidiary, a PC insurer, made net additions to loss reserves in 1986, reducing the "fresh start" entitlement and resulting in a tax deficiency. The Tax Court disagreed, holding that "reserve strengthening" refers to only those increases that result from changes in computation methods or assumptions. In reversing, the Third Circuit concluded that the Treasury regulation's definition of "reserve strengthening" is based on a permissible statutory construction.Held: The Treasury regulation represents a reasonable interpretation of the term "reserve strengthening." Neither prior legislation nor industry use establishes the plain meaning Atlantic ascribes to that term: reserve increases attributable to changes in methods or assumptions. Since the term is ambiguous, the question is not whether the Treasury regulation represents the best interpretation of the statute, but whether it represents a reasonable one. See Cottage Savings Assn. v. Commissioner, . As a purely linguistic matter, the phrase is broad enough to embrace all increases in the reserve's amount, for whatever reason and from whatever source. The provision at issue is a limitation upon an extraordinary deduction accorded to PC insurers. There was no need for the deduction to be microscopically fair, and the interpretation adopted in the Treasury regulation seems to be a reasonable accommodation of the competing interests of fairness, administrability, and avoidance of abuse. Given the hundreds (or more likely thousands) of claims involved, claims resolved for less than estimated reserves will tend to offset claims that settle for more than estimated reserves. Any discrepancy would not approach the unrealistic proportions claimed by Atlantic. Pp. 5-9.111 F. 3d 1056, affirmed.SCALIA , J., delivered the opinion for a unanimous Court. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme Court No. 97-147ATLANTIC MUTUAL INSURANCE COMPANY, PETI-TIONER v. COMMISSIONER OF IN- TERNAL REVENUE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT[April 21, 1998]JUSTICE SCALIA delivered the opinion of the Court.Property and casualty insurance companies maintain accounting reserves for "unpaid losses." Under the Tax Reform Act of 1986, increases in loss reserves that constitute "reserve strengthening" do not qualify for a certain one-time tax benefit. We must decide whether the term "reserve strengthening" reasonably encompasses any increase in reserves, or only increases that result from changes in the methods or assumptions used to compute them. IAtlantic Mutual Insurance Co. is the common parent of an affiliated group of corporations, including Centennial Insurance Co., a property and casualty (PC) insurer. From 1985 to 1993, the two corporations (Atlantic) maintained what insurers call "loss reserves." Loss reserves are estimates of amounts insurers will have to pay for losses that have been reported but not yet paid, for losses that have been incurred but not yet reported, and for ad ministrative costs of resolving claims.Before enactment of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085, the Internal Revenue Code gave PC insurers a full deduction for loss reserves as "losses incurred." In each taxable year, not only losses paid, but the full amount of the loss reserves, reduced by the amount of the loss reserves claimed for the prior taxable year, would be treated as a business expense. C. §§832(b)(5) and (c)(4) (1982 ed.). This designation enabled the PC insurer to take, in effect, a current deduction for future loss payments without adjusting for the "time value of money"-the fact that " '[a] dollar today is worth more than a dollar tomorrow,' " D. Herwitz & M. Barrett, Accounting for Lawyers 221 (2d ed. 1997). Section 1023 of the 1986 Act amended the Code to require PC insurers, for taxable years beginning after December 31, 1986, to discount unpaid losses to present value when claiming them as a deduction. 100 Stat. 2399, 2404C. §§832(b)(5)(A), 846 (1982 ed., Supp. V). Absent a transitional rule, PC insurers would have been left to subtract undiscounted year-end 1986 reserves from discounted year-end 1987 reserves for purposes of computing losses incurred for taxable year 1987-producing artificially low deductions. The 1986 Act softened this consequence by requiring PC insurers, for purposes of that 1987 tax computation, to discount 1986 reserves as well. 100 Stat. 2404, note following 26 U.S.C. § 846.Because the requirement that PC insurers discount 1986 reserves changed the "method of accounting" for computing taxable income, PC insurers, absent another transitional rule, would have been required to recognize as income the difference between undiscounted and discounted year-end 1986 loss reserves. See 26 U.S.C. § 481(a) (1988 ed.). To avoid this consequence, §1023(e)(3)(A) of the 1986 Act afforded PC insurers a "fresh start," to-wit, an exclusion from taxable income of the difference between undiscounted and discounted yearend 1986 loss reserves. 100 Stat. 2404, note following 26 U.S.C. § 846. Of course the greater the 1986 reserves, the greater the exclusion. Section 1023(e)(3)(B) of the 1986 Act foreclosed the possibility that insurers would inflate reserves to manipulate the "fresh start" by excepting "reserve strengthening" from the exclusion:"(B) R ESERVE STRENGTHENING IN YEARS AFTER 1985.-Subparagraph (A) [the fresh-start provision] shall not apply to any reserve strengthening in a taxable year beginning in 1986, and such strengthening shall be treated as occurring in the taxpayer's 1st taxable year beginning after December 31, 1986."100 Stat. 2404, note following 26 U.S.C. § 846.Regulations promulgated by the Treasury Department set forth rules for determining the amount of "reserve strengthening":"(1) In general . The amount of reserve strengthening (weakening) is the amount that is determined under paragraph (c)(2) or (3) to have been added to (subtracted from) an unpaid loss reserve in a taxable year beginning in 1986. For purposes of section 1023(e)(3)(B) of the 1986 Act, the amount of reserve strengthening (weakening) must be determined separately for each unpaid loss reserve by applying the rules of this paragraph (c). This determination is made without regard to the reasonableness of the amount of the unpaid loss reserve and without regard to the taxpayer's discretion, or lack thereof, in establishing the amount of the unpaid loss reserve... ... ... "(3) Accident years before 1986 -(i) In general . For each taxable year beginning in 1986, the amount of reserve strengthening (weakening) for an unpaid loss reserve for an accident year before 1986 is the amount by which the reserve at the end of that taxable year exceeds (is less than)-"(A) The reserve at the end of the immediately preceding taxable year; reduced by"(B) Claims paid and loss adjustment expenses paid ("loss payments") in the taxable year beginning in 1986 with respect to losses that are attributable to the reserve... ." Treas. Reg. 1.846-3(c), 26 CFR §1.8463(c) (1997).In short, any net additions to reserves (with two exceptions not here at issue, §1.846-3(c)(3)(ii)) constitute "reserve strengthening" under the regulation.The Commissioner of Internal Revenue determined that Atlantic made net additions to reserves-"reserve strengthening"-during 1986, reducing the "fresh start" entitlement by an amount that resulted in a tax deficiency of $519,987. The Tax Court disagreed, holding that Atlantic had not strengthened its reserves. "Reserve strengthening," the Tax Court held, refers only to increases in reserves that result from changes in the methods or assumptions used to compute them. (Atlantic's reserve increases, there is no dispute, did not result from any such change.) The United States Court of Appeals for the Third Circuit reversed the Tax Court, concluding that the Treasury regulation's definition of "reserve strengthening" to include any net additions to reserves is based on a permissible construction of the statute. 111 F. 3d 1056 (1997). (It expressly disagreed with the Eighth Circuit's conclusion in Western National Mutual Insurance Co. v. Commissioner , 65 F. 3d 90 (1995), that the Treasury regulation is invalid.) We granted certiorari. __ (1997). IIThe 1986 Act does not define "reserve strengthening." Atlantic contends that the term has a plain meaning under the statute: reserve increases attributable to changes in methods or assumptions. If that is what the term plainly means, Atlantic must prevail, "for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., .Atlantic contends that the plain meaning of "reserve strengthening" can be discerned, first, from its use in the PC insurance industry. It presented at trial two expert reports which, by "constructing a working definition of the term" that requires "a material change in methodology and/or assumptions," App. 68, 74, purport to demonstrate that Atlantic "did not strengthen reserves," id. , at 99. Our task, of course, is to determine not what the term ought to mean, but what it does mean. Atlantic's first expert, before "constructing" a definition, expressly acknowledged that "reserve strengthening" is "not a well-defined PC insurance or actuarial term of art to be found in PC actuarial, accounting, or insurance regulatory literature." Id. , at 60. On this point she was in agreement with the Commissioner's experts: "In the property-casualty industry the term 'reserve strengthening' has various meanings, rather than a single universal meaning," id. , at 124. If the expert reports establish anything, it is that "reserve strengthening" does not have an established meaning in the PC insurance industry.Atlantic next contends that a plain meaning can be discerned from prior use of the term in life-insurance tax legislation. According to Atlantic, the term has its roots in the Life Insurance Company Income Tax Act of 1959, which provided tax consequences for changes in the "basis" for determining life insurance reserves. 73 Stat. 125, 26 U.S.C. § 810(d) (1958 ed., Supp. I). But that provision does not define, or for that matter even use, the term "reserve strengthening." Though the regulation that implemented the provision uses the term "reserve strengthening" in a caption, Treas. Reg. §1.810-3(a), 26 CFR §1.8103(a) (1997), its text does not mention the term, and one of its Examples speaks only of "reserve strengthening attributable to the change in basis which occurred in 1959," §1.810-3(b), Ex. 2. If, as Atlantic argues, "basis" and "assumptions or methodologies" are interchangeable terms, Brief for Petitioner 17, n. 8, and a change in basis is necessary for "reserve strengthening," it is redundant to say "reserve strengthening attributable to the change in basis which occurred in 1959," much as it would be to say "a sunburn attributable to the sun in 1959." On Atlantic's assumptions, the more natural formulation would have been simply "reserve strengthening in 1959." Thus, the 1959 Act and implementing regulation suggest, if anything, that a change in basis is a sufficient, but not a necessary, condition for "reserve strengthening."Atlantic further contends that the term "reserve strengthening" draws a plain meaning from a provision of the Tax Reform Act of 1984 that accorded a "fresh start" adjustment to life-insurance reserves. Div. A., 98 Stat. 758, note following 26 U.S.C. § 801 (1984 Act). That provision, like the "fresh start" adjustment for PC insurers in the 1986 Act, said that the "fresh start" would not apply to reserve strengthening, specifically, "to any reserve strengthening reported for Federal income tax purposes after September 27, 1983, for a taxable year ending before January 1, 1984." 98 Stat. 759. Unlike the 1986 Act, however, the 1984 Act expressly provided that "reserve strengthening" would not be excluded from the "fresh start" if the insurer "employs the reserve practice used for purposes of the most recent annual statement filed before September 27, 1983 ... ." Ibid. If, as Atlantic contends, reserve strengthening encompasses only reserve increases that result from a change in reserve practices (viz., change in methods or assumptions), the saving clause is superfluous. Thus, to the extent the definition of "reserve strengthening" in the life-insurance context is relevant to its meaning here (which is questionable, see 111 F. 3d, at 1061-1062), the 1984 Act, like the regulations under the 1959 Act, tends to contradict, rather than support, petitioner's interpretation. We conclude that neither prior legislation nor industry use establishes the plain meaning Atlantic ascribes to "reserve strengthening." IIISince the term "reserve strengthening" is ambiguous, the task that confronts us is to decide, not whether the Treasury regulation represents the best interpretation of the statute, but whether it represents a reasonable one. See Cottage Savings Assn. v. Commissioner, . We conclude that it does.As a purely linguistic matter, the phrase is certainly broad enough to embrace all increases in ( all "strengthening of") the amount of the reserve, for whatever reason and from whatever source. Atlantic contends that this interpretation is unreasonable because, in theory, it produces absurd results, as the following example supposedly illustrates: Assume that in 1985 a PC insurer had four case reserves of $500 each (total reserves of $2,000). If two cases settled in 1986 for $750 each ($1,500 total), the remaining loss reserve would be $1,000. Under the regulation, according to Atlantic, the Commissioner would find "reserve strengthening" of $500 (1986 loss reserves ($1,000) less (first year reserves ($2,000) less second year payments ($1,500))), even though reserves did not increase. The Commissioner denies this consequence, contending that under the stipulation in this case the increase in the reserve would be "reduced to zero" by an offsetting adjustment when the payment is made, and that adjustments in the IBNR reserve (reserve for claims "incurred but not reported") may result from payments in excess of prior reserve amounts, offsetting changes in other reserves. Brief for Respondent 36-39.We need not resolve that dispute, because we agree with the Commissioner that Atlantic's horrific example is in any event unrealistic. The property and casualty insurer that had only four cases would not be in business very long, with or without the benefit of the tax adjustment-or if he would, his talents could be put to better use in Las Vegas. The whole point of the insurance business is to spread the insured risk over a large number of cases, where experience and the law of probabilities can be relied upon. And where hundreds (or more likely thousands) of claims are involved, claims resolved for less than estimated reserves will tend to offset claims that settle for more than estimated reserves. See Notice of Proposed Rulemaking Discounted Unpaid Losses, FI-139-86, 19912 Cum. Bull. 946, 947 ("For most unpaid loss reserves ... any potential inaccuracies are likely to offset each other in the aggregate"). There may, to be sure, be some discrepancy in one direction or the other, but it would not approach the relative proportions claimed by Atlantic.It should be borne in mind that the provision at issue here is a limitation upon an extraordinary deduction accorded to PC insurers. There was certainly no need for that deduction to be microscopically fair, and the interpretation adopted by the Treasury Regulation seems to us a reasonable accommodation-and one that the statute very likely intended-of the competing interests of fairness, administrability, and avoidance of abuse.* * *Because the Treasury regulation represents a reasonable interpretation of the term "reserve strengthening," we affirm the judgment of the Court of Appeals. It is so ordered. |
1 | After this Court held that respondent city had violated federal law by conditioning the renewal of petitioner's taxicab franchise on settlement of a pending labor dispute between petitioner and its union, Golden State Transit Corp. v. Los Angeles, (Golden State I), the District Court enjoined the city to reinstate the franchise. However, the court concluded that 42 U.S.C. 1983 did not authorize a compensatory damages award, since the Supremacy Clause does not create individual rights that may be vindicated in an action for damages under 1983; and since, even though the city's conduct was pre-empted by the National Labor Relations Act (NLRA) under Golden State I, there had been no "direct violation" of the statute, and the Act's comprehensive enforcement scheme precluded resort to 1983. The Court of Appeals affirmed.Held: Petitioner is entitled to maintain a 1983 action for compensatory damages. Pp. 105-113. (a) The Supremacy Clause, of its own force, does not create rights enforceable under 1983. The Clause "is not a source of any federal rights"; rather, it "`secure[s]' federal rights by according them priority whenever they come in conflict with state law." Chapman v. Houston Welfare Rights Organization, . Pp. 107-108. (b) However, the NLRA grants petitioner rights enforceable under 1983. A 1983 remedy is not precluded by the existence of a comprehensive enforcement scheme, since the NLRA provides no mechanism to address state interference with federally protected labor rights. Moreover, the city's argument that its conduct did not violate any rights secured by the NLRA is rejected, since petitioner is the intended beneficiary of a statutory scheme that gives parties to a collective-bargaining agreement the right to make use of "economic weapons," not expressly set forth in the NLRA, free of federal or state governmental interference. Machinists v. Wisconsin Employment Relations Comm'n, . The violation of a federal right that is implicit in a statute's language and structure is as much a "direct violation" of a right as is the violation that is clearly set forth in the text of the statute. Pp. 108-112. 857 F.2d 631, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 113.Zachary D. Fasman argued the cause and filed briefs for petitioner.John F. Haggerty argued the cause and filed a brief for respondent.* [Footnote *] Kenneth S. Geller, Andrew J. Pincus, Stuart E. Abrams, Daniel R. Barney, Robert Digges, Jr., Laurie T. Baulig, and William S. Busker filed a brief for the American Trucking Associations, Inc., as amicus curiae urging reversal.Benna Ruth Solomon and Charles Rothfeld filed a brief for the National League of Cities et al. as amici curiae.JUSTICE STEVENS delivered the opinion of the Court.In Golden State Transit Corp. v. Los Angeles, (Golden State I), we held that the respondent city had violated federal law by conditioning the renewal of petitioner's taxicab franchise on settlement of a pending labor dispute between petitioner and its union. On remand, the District Court enjoined the city to reinstate the franchise but concluded that 42 U.S.C. 1983 (1982 ed.)1 did not authorize an award of compensatory damages. The court reasoned that "the supremacy clause does not create individual rights that may be vindicated in an action for damages under Section 1983," 660 F. Supp. 571, 578 (CD Cal. 1987), and that even though the city's conduct was pre-empted by the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U.S.C. 151 et seq. (1982 ed. and Supp. V), a 1983 cause of action did not lie because there had been no "direct violation" of the statute and because the Act's comprehensive enforcement scheme precluded resort to 1983.2 The Court of Appeals affirmed. 857 F.2d 631 (CA9 1988). We granted certiorari limited to the question whether the NLRA granted petitioner rights enforceable under 1983. .ISection 1983 provides a federal remedy for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." As the language of the statute plainly indicates, the remedy encompasses violations of federal statutory as well as constitutional rights. We have repeatedly held that the coverage of the statute must be broadly construed. See, e. g., Felder v. Casey, ; Maine v. Thiboutot, ; cf. United States v. Price, . It provides a remedy "against all forms of official violation of federally protected rights." Monell v. New York City Dept. of Social Services, .A determination that 1983 is available to remedy a statutory or constitutional violation involves a two-step inquiry. First, the plaintiff must assert the violation of a federal right. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., . Section 1983 speaks in terms of "rights, privileges, or immunities," not violations of federal law. In deciding whether a federal right has been violated, we have considered whether the provision in question creates obligations binding on the governmental unit or rather "does no more than express a congressional preference for certain kinds of treatment." Pennhurst State School and Hospital v. Halderman, . The interest the plaintiff asserts must not be "too vague and amorphous" to be "beyond the competence of the judiciary to enforce." Wright v. Roanoke Redevelopment and Housing Authority, . We have also asked whether the provision in question was "intend[ed] to benefit" the putative plaintiff. Id., at 430; see also id., at 433 (O'CONNOR, J., dissenting) (citing Cort v. Ash, ).Second, even when the plaintiff has asserted a federal right, the defendant may show that Congress "specifically foreclosed a remedy under 1983," Smith v. Robinson, , n. 9 (1984), by providing a "comprehensive enforcement mechanis[m] for protection of a federal right," id., at 1003; see also Middlesex County Sewerage Authority v. National Sea Clammers Assn., ; Preiser v. Rodriguez, . The availability of administrative mechanisms to protect the plaintiff's interests is not necessarily sufficient to demonstrate that Congress intended to foreclose a 1983 remedy. See Wright, 479 U.S., at 425-428; cf. Rosado v. Wyman, . Rather, the statutory framework must be such that "[a]llowing a plaintiff" to bring a 1983 action "would be inconsistent with Congress' carefully tailored scheme." Smith, 468 U.S., at 1012. The burden to demonstrate that Congress has expressly withdrawn the remedy is on the defendant. See Wright, 479 U.S., at 423; National Sea Clammers, 453 U.S., at 21, n. 31. "`We do not lightly conclude that Congress intended to preclude reliance on 1983 as a remedy' for the deprivation of a federally secured right." Wright, 479 U.S., at 423-424 (quoting Smith v. Robinson, 468 U.S., at 1012).Respondent argues that the Supremacy Clause,3 of its own force, does not create rights enforceable under 1983. We agree. "[T]hat clause is not a source of any federal rights"; it "`secure[s]' federal rights by according them priority whenever they come in conflict with state law." Chapman v. Houston Welfare Rights Organization, ; see also Swift & Co. v. Wickham, .4 Given the variety of situations in which preemption claims may be asserted, in state court and in federal court, it would obviously be incorrect to assume that a federal right of action pursuant to 1983 exists every time a federal rule of law pre-empts state regulatory authority. Conversely, the fact that a federal statute has pre-empted certain state action does not preclude the possibility that the same federal statute may create a federal right for which 1983 provides a remedy.In all cases, the availability of the 1983 remedy turns on whether the statute, by its terms or as interpreted, creates obligations "sufficiently specific and definite" to be within "the competence of the judiciary to enforce," Wright, 479 U.S., at 432, is intended to benefit the putative plaintiff, and is not foreclosed "by express provision or other specific evidence from the statute itself," id., at 423.IIThe nub of the controversy between the parties is whether the NLRA creates "rights" in labor and management that are protected against governmental interference. The city does not argue, nor could it, that a 1983 action is precluded by the existence of a comprehensive enforcement scheme. Although the National Labor Relations Board (NLRB or Board) has exclusive jurisdiction to prevent and remedy unfair labor practices by employers and unions, it has no authority to address conduct protected by the NLRA against governmental interference.5 There is thus no comprehensive enforcement scheme for preventing state interference with federally protected labor rights that would foreclose the 1983 remedy. Nor can there be any substantial question that our holding in Golden State I that the city's conduct was pre-empted was within the competence of the judiciary to enforce. Rather, the city argues that it cannot be held liable under 1983 because its conduct did not violate any rights secured by the NLRA. On the basis of our previous cases, we reject this argument. We agree with petitioner that it is the intended beneficiary of a statutory scheme that prevents governmental interference with the collective-bargaining process and that the NLRA gives it rights enforceable against governmental interference in an action under 1983.In the NLRA, Congress has not just "occupied the field" with legislation that is passed solely with the interests of the general public in mind. In such circumstances, when congressional pre-emption benefits particular parties only as an incident of the federal scheme of regulation, a private damages remedy under 1983 may not be available. The NLRA, however, creates rights in labor and management both against one another and against the State.6 By its terms, the Act confers certain rights "generally on employees and not merely as against the employer." Hill v. Florida ex rel. Watson, (Stone, J., concurring in part and dissenting in part); see also Motor Coach Employees v. Missouri, ; Motor Coach Employees v. Wisconsin Employment Relations Bd., ; Automobile Workers v. O'Brien, . We have thus stated that "[i]f the state law regulates conduct that is actually protected by federal law, ... pre-emption follows ... as a matter of substantive right." Brown v. Hotel Employees, . The rights protected against state interference, moreover, are not limited to those explicitly set forth in 7 as protected against private interference. "The NLRA ... has long been understood to protect a range of conduct against state but not private interference." Wisconsin Dept. of Industry v. Gould Inc., . See also New York Telephone Co. v. New York Dept. of Labor, (Powell, J., dissenting) ("What Congress left unregulated is as important as the regulations that it imposed. It sought to leave labor and management essentially free to bargain for an agreement to govern their relationship"). And, contrary to the city's contention, "`[r]esort to economic weapons should more peaceful measures not avail' is the right of the employer as well as the employee." Machinists v. Wisconsin Employment Relations Comm'n, (quoting American Ship Building Co. v. NLRB, ).Golden State I was based on the doctrine that is identified with our decision in Machinists v. Wisconsin Employment Relations Comm'n, supra. That doctrine is fundamentally different from the rule of San Diego Building Trades Council v. Garmon, , that state jurisdiction over conduct arguably protected or prohibited by the NLRA is pre-empted in the interest of maintaining uniformity in the administration of the federal regulatory jurisdiction. See Trainmen v. Jacksonville Terminal Co., , n. 17 (1969).7 In Machinists, we reiterated that Congress intended to give parties to a collective-bargaining agreement the right to make use of "economic weapons," not explicitly set forth in the Act, free of governmental interference. 427 U.S., at 150. "[T]he congressional intent in enacting the comprehensive federal law of labor relations" required that certain types of peaceful conduct "must be free of regulation." Id., at 155. The Machinists rule creates a free zone from which all regulation, "whether federal or State," id., at 153, is excluded.8 The city's contrary argument, that the NLRA does not secure rights against the State because the duties of the State are not expressly set forth in the text of the statute, is not persuasive. We have held, based on the language, structure, and history of the NLRA, that the Act protects certain rights of labor and management against governmental interference. While it is true that the rule of the Machinists case is not set forth in the specific text of an enumerated section of the NLRA, that might well also be said with respect to any number of rights or obligations that we have found implicit in a statute's language. A rule of law that is the product of judicial interpretation of a vague, ambiguous, or incomplete statutory provision is no less binding than a rule that is based on the plain meaning of a statute. The violation of a federal right that has been found to be implicit in a statute's language and structure is as much a "direct violation" of a right as is the violation of a right that is clearly set forth in the text of the statute.The Machinists rule is not designed - as is the Garmon rule - to answer the question whether state or federal regulations should apply to certain conduct. Rather, it is more akin to a rule that denies either sovereign the authority to abridge a personal liberty. As much as the welfare benefits in Maine v. Thiboutot, , and the right to a prescribed portion of rent in Wright v. Roanoke Redevelopment and Housing Authority, , the interest in being free of governmental regulation of the "peaceful methods of putting economic pressure upon one another," Machinists, 427 U.S., at 154, is a right specifically conferred on employers and employees by the NLRA.9 Of course, Congress has the authority to retract the statutorily conferred liberty at will, just as the State in Wright and Thiboutot could relieve itself of federal obligations by declining federal funds. Cf. Guardians Assn. v. Civil Service Comm'n of New York City, (opinion of WHITE, J.); Rosado v. Wyman, 397 U.S., at 420. But while the rule remains in effect, it is a guarantee of freedom for private conduct that the State may not abridge.As we held in Golden State I, respondent's refusal to renew petitioner's franchise violated petitioner's right to use permissible economic tactics to withstand the strike. Because the case does not come within any recognized exception from the broad remedial scope of 1983, we reverse the judgment of the Court of Appeals. The case is remanded for further proceedings consistent with this opinion. It is so ordered. |
7 | Mr. J. Kirkman Jackson, of Birmingham, Ala., for petitioner. Mr. Peyton D. Bibb, of Birmingham, Ala., for respondent. PER CURIAM. The petitioner brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., in an Alabama state court. As permitted by the practice in that state, all the facts which the petitioner expected to prove to establish her [ Reynolds v. Atlantic Coast Line R. Co. ], 208] cause of action were set forth in the complaint so that any objections to a verdict in her favor based on evidence of those facts could be disposed of prior to trial. The respondent demurred to the complaint on the ground that the facts as thus set forth did not constitute a cause of action. The demurrer was sustained by the trial court and its action was affirmed by the Supreme Court of Alabama. 1 We granted certiorari. 2 It appears from the complaint that the petitioner's husband was a brakeman whose duties customarily required him to cross between cars on moving freight trains. On one such crossing he fell and was killed. This crossing occurred as part of a required journey from the caboose to a car from which a signal was to be given. The signal ordinarily would have been given from the sixth car from the caboose. The complaint charged, however, that because the railroad had negligently allowed canes to grow alongside the roadbed the deceased could not safely signal from the sixth car and so had to cross to the seventh in order to give the required signal. On this additional crossing he was killed. The complaint also charged that the deceased would not have had to make this particular journey at all if the railroad had provided a competent assistant brakeman. Neither the journey nor the crossing on which the accident occurred was alleged to be any more hazardous than that usually undertaken by railroad brakemen. The Alabama Supreme Court conceded that the complaint adequately charged negligence in the failure to remove the canes and in the failure to provide a competent fellow servant. It held, however, that the facts alleged did not show that the accident resulted proxi- , 209] mately, in whole or in part, from that negligence. We cannot say that the Supreme Court of Alabama erred. Affirmed. Mr. Justice FRANKFURTER is of opinion that this is also a case in which the petition for certiorari should not have been granted. See Wilkerson v. McCarthy, (concurring opinion). However, inasmuch as the case does not call for an independent examination of the record in order to appraise conflicting testimony, but merely turns on the facts presented in the pleadings, he joins in the Court's disposition of it. Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice MURPHY and Mr. Justice RUTLEDGE dissent. See Lillie v. Thompson, ; Anderson v. Atchison, T. & S.F.R. Co., . |
1 | During jury selection at his state court trial for aggravated murder and related offenses, petitioner Powers, a white man, objected to the State's use of peremptory challenges to remove seven black venirepersons from the jury. Powers' objections, which were based on Batson v. Kentucky, , were overruled, the impaneled jury convicted him on several counts, and he was sentenced to prison. On appeal, he contended that the State's discriminatory use of peremptories violated, inter alia, the Fourteenth Amendment's Equal Protection Clause, and that his own race was irrelevant to the right to object to the peremptories. The Ohio Court of Appeals affirmed his conviction.Held: Under the Equal Protection Clause, a criminal defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded jurors share the same race. Pp. 404-416.(a) The Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race. See, e. g., Batson, supra, at 84; Holland v. Illinois, . Contrary to Ohio's contention, racial identity between the objecting defendant and the excluded jurors does not constitute a relevant precondition for a Batson challenge, and would, in fact, contravene the substantive guarantees of the Equal Protection Clause and the policies underlying federal statutory law. Although Batson did involve such an identity, it recognized that the State's discriminatory use of peremptories harms the excluded jurors by depriving them of a significant opportunity to participate in civil life. 476 U.S., at 87. Moreover, the discriminatory selection of jurors has been the subject of a federal criminal prohibition since Congress enacted the Civil Rights Act of 1875. Thus, although an individual juror does not have the right to sit on any particular petit jury, he or she does possess the right not to be excluded from one on account of race. This Court rejects, as contrary to accepted equal protection principles, the arguments that no particular stigma or dishonor results if a prosecutor uses the raw fact of skin color to determine a juror's objectivity or qualifications, see Batson, supra, at 87, and that race-based peremptory challenges are permissible when visited upon members of all races in equal degree, see Loving v. Virginia, . Pp. 410-416.(b) A criminal defendant has standing to raise the third-party equal protection claims of jurors excluded by the prosecution because of their race. Cf., e. g., Singleton v. Wulff, . First, the discriminatory use of peremptory challenges causes the defendant cognizable injury, and he or she has a concrete interest in challenging the practice, because racial discrimination in jury selection casts doubt on the integrity of the judicial process and places the fairness of the criminal proceeding in doubt. Second, the relationship between the defendant and the excluded jurors is such that he or she is fully as effective a proponent of their rights as they themselves would be, since both have a common interest in eliminating racial discrimination from the courtroom, and there can be no doubt that the defendant will be a motivated, effective advocate because proof of a discriminatorily constituted jury may lead to the reversal of the conviction under Batson, supra, at 100. Third, it is unlikely that a juror dismissed because of race will possess sufficient incentive to set in motion the arduous process needed to vindicate his or her own rights. Thus, the fact that Powers' race differs from that of the excluded jurors is irrelevant to his standing to object to the discriminatory use of peremptories. Pp. 410-416. Reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 417.Robert L. Lane, by appointment of the Court, , argued the cause for petitioner. With him on the brief were Randall M. Dana, Gregory L. Ayers, and Jill E. Stone. Alan Craig Travis argued the cause for respondent. With him on the brief was Michael Miller.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Barbara D. Underwood, Steven R. Shapiro, Julius LeVonne Chambers, and Charles Stephen Ralston; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. Harry R. Reinhart and Kathleen S. Aynes filed a brief for the Ohio Association of Criminal Defense Lawyers as amicus curiae. JUSTICE KENNEDY delivered the opinion of the Court.Jury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civic life. Congress recognized this over a century ago in the Civil Rights Act of 1875, which made it a criminal offense to exclude persons from jury service on account of their race. See 18 U.S.C. 243. In a trilogy of cases decided soon after enactment of this prohibition, our Court confirmed the validity of the statute, as well as the broader constitutional imperative of race-neutrality in jury selection. See Strauder v. West Virginia, ; Virginia v. Rives, ; Ex parte Virginia, . In the many times we have confronted the issue since those cases, we have not questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts. Despite the clarity of these commands to eliminate the taint of racial discrimination in the administration of justice, allegations of bias in the jury selection process persist. In this case, petitioner alleges race discrimination in the prosecution's use of peremptory challenges. Invoking the Equal Protection Clause and federal statutory law, and relying upon well-established principles of standing, we hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.IPetitioner Larry Joe Powers, a white man, was indicted in Franklin County, Ohio on two counts of aggravated murder and one count of attempted aggravated murder. Each count also included a separate allegation that petitioner had a firearm while committing the offense. Powers pleaded not guilty and invoked his right to a jury trial. In the jury selection process, Powers objected when the prosecutor exercised his first peremptory challenge to remove a black venireperson. Powers requested the trial court to compel the prosecutor to explain, on the record, his reasons for excluding a black person. The trial court denied the request and excused the juror. The State proceeded to use nine more peremptory challenges, six of which removed black venirepersons from the jury. Each time the prosecution challenged a black prospective juror, Powers renewed his objections, citing our decision in Batson v. Kentucky, . His objections were overruled. The record does not indicate that race was somehow implicated in the crime or the trial; nor does it reveal whether any black persons sat on petitioner's petit jury or if any of the nine jurors the petitioner excused by peremptory challenges were black persons.The impaneled jury convicted Powers on counts of murder, aggravated murder, and attempted aggravated murder, each with the firearm specifications, and the trial court sentenced him to a term of imprisonment of 53 years to life. Powers appealed his conviction to the Ohio Court of Appeals, contending that the prosecutor's discriminatory use of peremptories violated the Sixth Amendment's guarantee of a fair cross-section in his petit jury, the Fourteenth Amendment's Equal Protection Clause, and Article I, 10 and 16, of the Ohio Constitution. Powers contended that his own race was irrelevant to the right to object to the prosecution's peremptory challenges. The Court of Appeals affirmed the conviction, and the Supreme Court of Ohio dismissed Powers' appeal on the ground that it presented no substantial constitutional question.Petitioner sought review before us, renewing his Sixth Amendment fair cross-section and Fourteenth Amendment equal protection claims. While the petition for certiorari was pending, we decided Holland v. Illinois, . In Holland it was alleged the prosecution had used its peremptory challenges to exclude from the jury members of a race other than the defendant's. We held the Sixth Amendment did not restrict the exclusion of a racial group at the peremptory challenge stage. Five members of the Court there said a defendant might be able to make the objection on equal protection grounds. See id., at 488 (KENNEDY, J., concurring); id., at 490 (MARSHALL, J., dissenting, joined by Brennan and BLACKMUN, JJ.); id., at 504 (STEVENS, J., dissenting). After our decision in Holland, we granted Powers' petition for certiorari limited to the question whether, based on the Equal Protection Clause, a white defendant may object to the prosecution's peremptory challenges of black venirepersons. . We now reverse and remand.IIFor over a century, this Court has been unyielding in its position that a defendant is denied equal protection of the laws when tried before a jury from which members of his or her race have been excluded by the State's purposeful conduct. "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, Strauder, [100 U.S.] at 305, or on the false assumption that members of his race as a group are not qualified to serve as jurors, see Norris v. Alabama, ; Neal v. Delaware, ." Batson, supra, at 86. (footnote omitted). Although a defendant has no right to a "petit jury composed in whole or in part of persons of [the defendant's] own race," Strauder, 100 U.S., at 305, he or she does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria.We confronted the use of peremptory challenges as a device to exclude jurors because of their race for the first time in Swain v. Alabama, . Swain involved a challenge to the so-called struck jury system, a procedure designed to allow both the prosecution and the defense a maximum number of peremptory challenges. The venire in noncapital cases started with about 35 potential jurors, from which the defense and the prosecution alternated with strikes until a petit panel of 12 jurors remained. The defendant in Swain, who was himself black, alleged that the prosecutor had used the struck jury system and its numerous peremptory challenges for the purpose of excluding black persons from his petit jury. In finding that no constitutional harm was alleged, the Court in Swain sought to reconcile the command of racial neutrality in jury selection with the utility, and the tradition, of peremptory challenges. The Court declined to permit an equal protection claim premised on a pattern of jury strikes in a particular case, but acknowledged that proof of systematic exclusion of black persons through the use of peremptories over a period of time might establish an equal protection violation. Id., at 222-228.We returned to the problem of a prosecutor's discriminatory use of peremptory challenges in Batson v. Kentucky. There, we considered a situation similar to the one before us today, but with one exception: Batson, the defendant who complained that black persons were being excluded from his petit jury, was himself black. During the voir dire examination of the venire for Batson's trial, the prosecutor used his peremptory challenges to strike all four black persons on the venire, resulting in a petit jury composed only of white persons. Batson's counsel moved without success to discharge the jury before it was impaneled on the ground that the prosecutor's removal of black venirepersons violated his rights under the Sixth and Fourteenth Amendments. Relying upon the Equal Protection Clause alone, we overruled Swain to the extent it foreclosed objections to the discriminatory use of peremptories in the course of a specific trial. 476 U.S., at 90-93. In Batson, we held that a defendant can raise an equal protection challenge to the use of peremptories at his own trial by showing that the prosecutor used them for the purpose of excluding members of the defendant's race. Id., at 96. The State contends that our holding in the case now before us must be limited to the circumstances prevailing in Batson, and that in equal protection analysis the race of the objecting defendant constitutes a relevant precondition for a Batson challenge. Because Powers is white, the State argues, he cannot object to the exclusion of black prospective jurors. This limitation on a defendant's right to object conforms neither with our accepted rules of standing to raise a constitutional claim nor with the substantive guarantees of the Equal Protection Clause and the policies underlying federal statutory law.In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson "was designed `to serve multiple ends,'" only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, (per curiam) (quoting Brown v. Louisiana, ). Batson recognized that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large. 476 U.S., at 87.The opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system. See Duncan v. Louisiana, . In Balzac v. Porto Rico, , Chief Justice Taft wrote for the Court:"The jury system postulates a conscious duty of participation in the machinery of justice... . One of its greatest benefits is in the security it gives the people that they, as jurors actual or possible, being part of the judicial system of the country can prevent its arbitrary use or abuse." Id., at 310. And, over 150 years ago, Alexis De Tocqueville remarked: "[T]he institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority [and] invests the people, or that class of citizens, with the direction of society. ... . . "... The jury ... invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society; and the part which they take in the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society. ... . . "I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ." 1 Democracy in America 334-337 (Schocken 1st ed. 1961). Jury service preserves the democratic element of the law, as it guards the rights of the parties and insures continued acceptance of the laws by all of the people. See Green v. United States, (Black, J., dissenting). It "affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law." Duncan, supra, at 187 (Harlan, J., dissenting). Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.While States may prescribe relevant qualifications for their jurors, see Carter v. Jury Comm'n of Greene County, , a member of the community may not be excluded from jury service on account of his or her race. See Batson, supra, at 84; Swain, 380 U.S., at 203-204; Carter, supra, at 329-330; Thiel v. Southern Pacific Co., , 220-221 (1946); Neal v. Delaware, ; Strauder, 100 U.S., at 308. "Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise." Carter, supra, at 330. Over a century ago, we recognized that:"The very fact that [members of a particular race] are singled out and expressly denied ... all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others." Strauder, supra, at 308. Discrimination in the jury selection process is the subject of a federal criminal prohibition, and has been since Congress enacted the Civil Rights Act of 1875. The prohibition has been codified at 18 U.S.C. 243, which provides: "No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000." In Peters v. Kiff, , JUSTICE WHITE spoke of "the strong statutory policy of 243, which reflects the central concern of the Fourteenth Amendment." Id., at 507 (concurring in judgment). The Court permitted a white defendant to challenge the systematic exclusion of black persons from grand and petit juries. While Peters did not produce a single majority opinion, six of the Justices agreed that racial discrimination in the jury selection process cannot be tolerated, and that the race of the defendant has no relevance to his or her standing to raise the claim. See id., at 504-505 (opinion of MARSHALL, J.); id., at 506-507 (WHITE, J., concurring in judgment).Racial discrimination in the selection of jurors in the context of an individual trial violates these same prohibitions. A State "may not draw up its jury lists pursuant to neutral procedures, but then resort to discrimination at `other stages in the selection process.'" Batson, 476 U.S., at 88 (quoting Avery v. Georgia, ). We so held in Batson, and reaffirmed that holding in Holland. See 493 U.S., at 479. In Holland, the Court held that a defendant could not rely on the Sixth Amendment to object to the exclusion of members of any distinctive group at the peremptory challenge stage. We noted that the peremptory challenge procedure has acceptance in our legal tradition. See id., at 481. On this reasoning, we declined to permit an objection to the peremptory challenge of a juror on racial grounds as a Sixth Amendment matter. As the Holland Court made explicit, however, racial exclusion of prospective jurors violates the overriding command of the Equal Protection Clause, and "race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage." Id., at 479.We hold that the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race. It is suggested that no particular stigma or dishonor results if a prosecutor uses the raw fact of skin color to determine the objectivity or qualifications of a juror. We do not believe a victim of the classification would endorse this view; the assumption that no stigma or dishonor attaches contravenes accepted equal protection principles. Race cannot be a proxy for determining juror bias or competence. "A person's race simply `is unrelated to his fitness as a juror.'" Batson, supra, at 87 (quoting Thiel v. Southern Pacific Co., supra, at 227 (Frankfurter, J., dissenting)). We may not accept as a defense to racial discrimination the very stereotype the law condemns.We reject as well the view that race-based peremptory challenges survive equal protection scrutiny because members of all races are subject to like treatment, which is to say that white jurors are subject to the same risk of peremptory challenges based on race as are all other jurors. The suggestion that racial classifications may survive when visited upon all persons is no more authoritative today than the case which advanced the theorem, Plessy v. Ferguson, . This idea has no place in our modern equal protection jurisprudence. It is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree. Loving v. Virginia, .IIIWe must consider whether a criminal defendant has standing to raise the equal protection rights of a juror excluded from service in violation of these principles. In the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief premised on the legal rights or interests of third parties. Department of Labor v. Triplett, ; Singleton v. Wulff, . This fundamental restriction on our authority admits of certain, limited exceptions. We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an "injury-in-fact," thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute, id., at 112; the litigant must have a close relation to the third party, id., at 113-114; and there must exist some hindrance to the third party's ability to protect his or her own interests. Id., at 115-116. See also Craig v. Boren, . These criteria have been satisfied in cases where we have permitted criminal defendants to challenge their convictions by raising the rights of third parties. See, e. g., Eisenstadt v. Baird, ; Griswold v. Connecticut, ; see also McGowan v. Maryland, . By similar reasoning, we have permitted litigants to raise third-party right; in order to prevent possible future prosecution. See, e. g., Doe v. Bolton, .The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury, and the defendant has a concrete interest in challenging the practice. See Allen v. Hardy, 478 U.S., at 259 (recognizing a defendant's interest in "neutral jury selection procedures"). This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors "casts doubt on the integrity of the judicial process," Rose v. Mitchell, , and places the fairness of a criminal proceeding in doubt.The jury acts as a vital check against wrongful exercise of power by the State and its prosecutors. Batson, supra, 476 U.S., at 86. The intrusion of racial discrimination into the jury selection process damages both the fact and the perception of this guarantee. "Jury selection is the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, Rosales-Lopez v. United States, ; Ham v. South Carolina, ; Dennis v. United States, , or predisposition about the defendant's culpability, Irvin v. Dowd, ." Gomez v. United States, . Active discrimination by a prosecutor during this process condones violations of the United States Constitution within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury's neutrality and its obligation to adhere to the law. The cynicism may be aggravated if race is implicated in the trial, either in a direct way as with an alleged racial motivation of the defendant or a victim, or in some more subtle manner as by casting doubt upon the credibility or dignity of a witness, or even upon the standing or due regard of an attorney who appears in the cause.Unlike the instances where a defendant seeks to object to the introduction of evidence obtained illegally from a third party, see, e. g., United States v. Payner, , here petitioner alleges that the primary constitutional violation occurred during the trial itself. A prosecutor's wrongful exclusion of a juror by a race-based peremptory challenge is a constitutional violation committed in open court at the outset of the proceedings. The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause. The voir dire phase of the trial represents the "jurors' first introduction to the substantive factual and legal issues in a case." Gomez, supra, at 874. The influence of the voir dire process may persist through the whole course of the trial proceedings. Ibid. If the defendant has no right to object to the prosecutor's improper exclusion of jurors, and if the trial court has no duty to make a prompt inquiry when the defendant shows, by adequate grounds, a likelihood of impropriety in the exercise of a challenge, there arise legitimate doubts that the jury has been chosen by proper means. The composition of the trier of fact itself is called in question, and the irregularity may pervade all the proceedings that follow.The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset. Upon these considerations, we find that a criminal defendant suffers a real injury when the prosecutor excludes jurors at his or her own trial on account of race.We noted in Singleton that, in certain circumstances, "the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter." 428 U.S., at 115. Here, the relation between petitioner and the excluded jurors is as close as, if not closer than, those we have recognized to convey third-party standing in our prior cases. See, e. g., Griswold v. Connecticut, supra, (Planned Parenthood official and a licensed physician can raise the constitutional rights of contraceptive users with whom they had professional relationships); Craig, supra, (licensed beer vendor has standing to raise the equal protection claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and to females under the age of 18); Department of Labor v.Triplett, (attorney may challenge an attorney's fees restriction by asserting the due process rights of the client). Voir dire permits a party to establish a relation, if not a bond of trust, with the jurors. This relation continues throughout the entire trial, and may in some cases extend to the sentencing as well.Both the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom. A venireperson excluded from jury service because of race suffers a profound personal humiliation heightened by its public character. The rejected juror may lose confidence in the court and its verdicts, as may the defendant if his or her objections cannot be heard. This congruence of interests makes it necessary and appropriate for the defendant to raise the rights of the juror. And there can be no doubt that petitioner will be a motivated, effective advocate for the excluded venirepersons' rights. Petitioner has much at stake in proving that his jury was improperly constituted due to an equal protection violation, for we have recognized that discrimination in the jury selection process may lead to the reversal of a conviction. See Batson, supra, at 100; Vasquez v. Hillery, ; Rose v. Mitchell, supra, at 551; Cassell v. Texas, . Thus, "`there seems little loss in terms of effective advocacy from allowing [the assertion of this claim] by' the present jus tertii champion." Craig, 429 U.S., at 194 (quoting Singleton, supra, at 118).The final inquiry in our third-party standing analysis involves the likelihood and ability of the third parties, the excluded venirepersons, to assert their own rights. See Singleton, supra, at 115-116. We have held that individual jurors subjected to racial exclusion have the legal right to bring suit on their own behalf. Carter, 396 U.S., at 329-330. As a practical matter, however, these challenges are rare. See Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges and the Review of Jury Verdicts, 56 U.Chi.L.Rev. 153, 193-195 (1989). Indeed. it took nearly a century after the Fourteenth Amendment and the Civil Rights Act of 1875 came into being for the first such case to reach this Court. See Carter, supra, at 320.The barriers to a suit by an excluded juror are daunting. Potential jurors are not parties to the jury selection process, and have no opportunity to be heard at the time of their exclusion. Nor can excluded jurors easily obtain declaratory or injunctive relief when discrimination occurs through an individual prosecutor's exercise of peremptory challenges. Unlike a challenge to systematic practices of the jury clerk and commissioners such as we considered in Carter, it would be difficult for an individual juror to show a likelihood that discrimination against him at the voir dire stage will recur. See Los Angeles v. Lyons, . And there exist considerable practical barriers to suit by the excluded juror because of the small financial stake involved and the economic burdens of litigation. See Vasquez, supra, 262, n. 5; Rose v. Mitchell 443 U.S., at 558. The reality is that a juror dismissed because of race probably will leave the courtroom possessing little incentive to set in motion the arduous process needed to vindicate his own rights. See Barrows v. Jackson, .We conclude that a defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race. In so doing, we once again decline "to reverse a course of decisions of long standing directed against racial discrimination in the administration of justice." Cassell v. Texas, supra at 290 (Frankfurter, J., concurring in judgment). To bar petitioner's claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service. In Holland and Batson, we spoke of the significant role peremptory challenges play in our trial procedures, but we noted also that the utility of the peremptory challenge system must be accommodated to the command of racial neutrality. Holland, 493 U.S., at 486-487; Batson, 476 U.S., at 98-99.The Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. Rose v. Mitchell, supra, at 555. We have held, for example, that prosecutorial discretion cannot be exercised on the basis of race, Wayte v. United States, , and that, where racial bias is likely to influence a jury, an inquiry must be made into such bias. Ristaino v. Ross, , 596 (1976); see also Turner v. Murray, . The statutory prohibition on discrimination in the selection of jurors, 18 U.S.C. 243, enacted pursuant to the Fourteenth Amendment's Enabling Clause, makes race-neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution. The courts are under an affirmative duty to enforce the strong statutory and constitutional policies embodied in that prohibition. See Peters v. Kiff, 407 U.S., at 507 (WHITE, J., concurring in judgment); see also id., at 505 (opinion of MARSHALL, J.).The emphasis in Batson on racial identity between the defendant and the excused prospective juror is not inconsistent with our holding today that race is irrelevant to a defendant's standing to object to the discriminatory use of peremptory challenges. Racial identity between the defendant and the excused person might in some cases be the explanation for the prosecution's adoption of the forbidden stereotype, and if the alleged race bias takes this form, it may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred. But to say that the race of the defendant may be relevant to discerning bias in some cases does not mean that it will be a factor in others, for race prejudice stems from various causes, and may manifest itself in different forms.It remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and well-founded objections to the use of peremptory challenges as a mask for race prejudice. In this case, the State concede that, if we find the petitioner has standing to object to the prosecution's use of the peremptory challenges, the case should be remanded. We find that petitioner does have standing. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with our opinion. It is so ordered. JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissentingSince, in my view, today's decision contradicts well established law in the area of equal protection and of standing, I respectfully dissent.IThe Court portrays its holding as merely the logical application of our prior jurisprudence concerning equal protection challenges to criminal convictions. It is far from that.Over a century ago, in Strauder v. West Virginia, , we held that a statute barring blacks from service on grand or petit juries denied equal protection of the laws to a black man convicted of murder by an all-white jury. Interpreting the recently enacted Fourteenth Amendment, we concluded that the statute violated the black defendant's equal protection right for the following reason:"It is not easy to comprehend how it can be said that, while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?" Id., at 309. It was not suggested in Strauder, and I am sure it was quite unthinkable, that a white defendant could have had his conviction reversed on the basis of the same statute. The statute did not exclude members of his race, and thus did not deprive him of the equal protection of the laws. Since Strauder, we have repeatedly invalidated criminal convictions on equal protection grounds where state laws or practices excluded potential jurors from service on the basis of race. See Vasquez v. Hillery, ; Castaneda v. Partida, ; Alexander v. Louisiana, ; Sims v. Georgia, (per curiam); Jones v. Georgia, (per curiam); Whitus v. Georgia, ; Coleman v. Alabama, ; Arnold v. North Carolina, (per curiam); Eubanks v. Louisiana, ; Reece v. Georgia, ; Williams v. Georgia, ; Hernandez v. Texas, ; Avery v. Georgia, , Cassell v. Texas, ; Patton v. Mississippi, ; Hill v. Texas, ; Smith v. Texas, ; Pierre v. Louisiana, ; Hale v. Kentucky, (per curiam); Hollins v. Oklahoma, (per curiam); Norris v. Alabama, ; Rogers v. Alabama, ; Carter v. Texas, ; Bush v. Kentucky, ; Neal v. Delaware, . In all these cases, the basis for our decision was that the State had violated the defendant's right to equal protection, because it had excluded jurors of his race. As we said in Carter v. Texas: "Whenever, by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States." 177 U.S., at 447 (emphasis added).Twenty-six years ago, in Swain v. Alabama, , we first considered an equal protection claim against peremptory challenges by the prosecution. In that case, a black man had been convicted and sentenced to death by an all-white jury, the prosecutor having peremptorily struck six prospective black jurors from the venire. We rejected the defendant's equal protection claim. Our opinion set forth at length the "very old credentials" of the peremptory challenge, id., at 212, see id., at 212-219, discussed the reasons for the "long and widely held belief" that it is "a necessary part of trial by jury," id., at 219, see id., at 219-221, and observed that it is "frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty," id., at 220. To accept petitioner's equal protection claim, we said, "would establish a rule wholly at odds with the peremptory challenge system as we know it," id., at 222, a system in which "Negro and white, Protestant and Catholic, are alike subject to being challenged without cause," id., at 221. But while permitting race-based challenges for the traditional purpose of eliminating "irrational ... suspicions and antagonisms," id., at 224, "related to the case [the prosecutor] is trying, the particular defendant involved and the particular crime charged," id., at 223, we strongly suggested that it would violate the Equal Protection Clause to use race-based challenges as a surrogate for segregated jury lists, employing them "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim," ibid. in order to "deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population," id., at 224.Five years ago we revisited the issue, and overruled Swain. In Batson v. Kentucky, , we held that "a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case," id., at 95 (emphasis in original), whereupon the prosecution would be required to justify its strikes on race-neutral grounds. Batson, however, like all our other cases upholding an equal protection challenge to the composition of criminal juries, referred to - indeed, it emphasized - the necessity of racial identity between the defendant and the excluded jurors. "[T]he defendant," we said, "first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Id., at 96 (emphasis added, citation omitted). This requirement was repeated several times. "The defendant initially must show that he is a member of a racial roup capable of being singled out for differential treatment." Id., at 94 (emphasis added). "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race." Id., at 86 (emphasis added). JUSTICE WHITE, concurring, concluded that the abandonment of Swain was justified because "[i]t appears ... that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread, so much so that I agree that an opportunity to inquire should be afforded when this occurs." Id., at 101 (emphasis added). Today's opinion for the Court is correct in noting that Batson asserted that "a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large," ante, at 406. But there is no contradiction, and Batson obviously saw none, between that proposition and the longstanding and reiterated principle that no defendant except one of the same race as the excluded juror is deprived of equal protection of the laws.On only two occasions in the past have we considered claims by a criminal defendant of one race that the prosecution had discriminated against prospective jurors of another race. Last Term, in Holland v. Illinois, , we held that the prosecution's use of peremptory strikes against black jurors did not deprive a white defendant of his Sixth Amendment right to an impartial jury. No equal protection claim was made in that case. Such a claim was made, however, in Peters v. Kiff, . There the petitioner, a white man, contended that the State, through its use of segregated jury lists, had excluded blacks from his grand and petit juries, thus denying him due process and equal protection. The case produced no majority opinion, but it is significant that no Justice relied upon the petitioner's equal protection argument. JUSTICE MARSHALL, joined by Justice Douglas and Justice Stewart, asserted that a defendant has a due process right not to be subjected "to indictment or trial by a jury that has been selected in an arbitrary and discriminatory manner." Id., at 502. JUSTICE WHITE, joined by Justice Brennan and Justice Powell, concluded that "the strong statutory policy" contained in the 1875 criminal statute prohibiting disqualification from jury service on racial grounds, 18 U.S.C. 243, entitled the petitioner to challenge the exclusion of blacks from the grand jury that indicted him. 407 U.S., at 507. Chief Justice Burger, joined by JUSTICE BLACKMUN and then-JUSTICE REHNQUIST, contended that there was no basis for assuming that the petitioner had been injured in any way by the alleged discrimination, and noted that "the Court has never intimated that a defendant is the victim of unconstitutional discrimination if he does not claim that members of his own race have been excluded." Id., at 509.Alexander v. Louisiana, , involved precisely the sort of claim made here, in the context of an alleged denial of equal protection on the basis of sex. In that case, a black male defendant contended that the State's manner of composing its jury lists had excluded blacks and women from his grand jury, thereby denying him equal protection of the laws. We ultimately found it unnecessary to reach his claim regarding the exclusion of women, but only after saying the following:"This claim is novel in this Court and, when urged by a male, finds no support in our past cases. The strong constitutional and statutory policy against racial discrimination has permitted Negro defendants in criminal cases to challenge the systematic exclusion of Negroes from the grand juries that indicted them... . [T]here is nothing in past adjudications suggesting that petitioner himself has been denied equal protection by the alleged exclusion of women from grand jury service." Id., at 633 (emphasis added). Similarly, in Castaneda v. Partida, , in holding that the respondent had successfully established a prima facie case of discrimination against Mexican-Americans in the selection of grand jurors, we said that, "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial under-representation of his race or of the identifiable group to which he belongs." Id., at 494 (emphasis added).Thus, both before and after Batson, and right down to the release of today's opinion, our jurisprudence contained neither a case holding, nor even a dictum suggesting, that a defendant could raise an equal protection challenge based upon the exclusion of a juror of another race; and our opinions contained a vast body of clear statement to the contrary. We had reaffirmed the point just last Term in Holland, supra. After quoting the language from Batson requiring the defendant to show that he is a member of the racial group alleged to have been removed from the jury, we contrasted the requirements for standing under the Fourteenth Amendment's Equal Protection Clause and the Sixth Amendment: "We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross-section of the community, whether or not the systematically excluded groups are groups to which he himself belongs." 493 U.S., at 477 (emphasis added).Thus, today's holding cannot be considered in accordance with our prior law. It is a clear departure.IIIn an apparent attempt to portray the question before us as a novel one, the Court devotes a large portion of its opinion to third-party standing - as though that obvious avenue of rendering the Equal Protection Clause applicable had not occurred to us in the many cases discussed above. Granted, the argument goes, that this white defendant has not himself been denied equal protection, but he has third-party standing to challenge the denial of equal protection to the stricken black jurors. The Court's discussion of third-party standing is no more faithful to our precedent than its description of our earlier equal protection cases. Before reaching that point, however, there is a prior one: the first-party right upon which the Court seeks to base third-party standing has not hitherto been held to exist.All citizens have the equal protection right not to be excluded from jury service (i.e., not to be excluded from grand and petit jury lists) on the basis of irrelevant factors such as race, Carter v. Jury Comm'n of Greene County, , or employment status, cf. Thiel v. Southern Pacific Co., . As Swain suggested, this principle would also prohibit the systematic exclusion of a particular race or occupation from all jury service through peremptory challenges. When a particular group has been singled out in this fashion, its members have been treated differently, and have suffered the deprivation of a right and responsibility of citizenship. But when that group, like all others, has been made subject to peremptory challenge on the basis of its group characteristic, its members have been treated not differently, but the same. In fact, it would constitute discrimination to exempt them from the peremptory strike exposure to which all others are subject. If, for example, men were permitted to be struck but not women, or fundamentalists but not atheists, or blacks but not whites, members of the former groups would plainly be the object of discrimination.In reply to this, it could be argued that discrimination is not legitimated by being applied, so to speak, indiscriminately; that the unlawfulness of treating one person differently on irrelevant grounds is not erased by subjecting everyone else to the same unlawfulness. The response to this is that the stricken juror has not been "treated differently" in the only pertinent sense - that is, in the sense of being deprived of any benefit or subjected to any slight or obloquy. The strike does not deprecate his group, and thereby "stigmatize" his own personality. Unlike the categorical exclusion of a group from jury service, which implies that all its members are incompetent or untrustworthy, a peremptory strike on the basis of group membership implies nothing more than the undeniable reality (upon which the peremptory strike system is largely based) that all groups tend to have particular sympathies and hostilities - most notably, sympathies towards their own group members. Since that reality is acknowledged as to all groups, and forms the basis for peremptory strikes as to all of them, there is no implied criticism or dishonor to a strike. Nor is the juror who is struck because of his group membership deprived of any benefit. It is obvious, as Strauder acknowledged, that a defendant belonging to an identifiable group is benefited by having members of that group on his jury, but it is impossible to understand how a juror is benefited by sitting in judgment of a member of his own group, rather than of another. All qualified citizens have a civic right, of course, to serve as jurors, but none has the right to serve as a juror in a particular case. Otherwise, we would have to permit stricken jurors to complain not only of peremptory challenges that supposedly deny them equal protection, but also of erroneously allowed challenges for cause.To affirm that the Equal Protection Clause applies to strikes of individual jurors is effectively to abolish the peremptory challenge. As discussed in Swain, "irrelevant" personal characteristics are, by definition, the basis for using that device; relevant characteristics would produce recusal for cause. And as Swain also pointed out, the irrelevant characteristics relied upon are frequently those that would promptly trigger invalidation in other contexts - not only race, but religion, sex, age, political views, economic status. Not only is it implausible that such a permanent and universal feature of our jury trial system is unconstitutional, but it is unlikely that its elimination would be desirable. The peremptory challenge system has endured so long because it has unquestionable advantages. As we described in Holland, 493 U.S., at 484, it is a means of winnowing out possible (though not demonstrable) sympathies and antagonisms on both sides, to the end that the jury will be the fairest possible. In a criminal law system in which a single biased juror can prevent a deserved conviction or a deserved acquittal, the importance of this device should not be minimized.Until Batson, our jurisprudence affirmed the categorical validity of peremptory strikes so long as they were not used as a substitute for segregated jury lists. Batson made an exception, but one that was narrow in principle, and hence limited in effect. It announced an equal protection right, not of prospective jurors to be seated without regard to their race, but of defendants not to be tried by juries from which members of their race have been intentionally excluded. While the opinion refers to "[t]he harm" that "discriminatory jury selection" inflicts upon "the excluded juror," 476 U.S., at 87, that is not a clear recognition, even in dictum, that the excluded juror has his own cause of action - any more than its accompanying reference to the harm inflicted upon "the entire community," ibid., suggests that the entire community has a cause of action. To the contrary, an independent cause of action on the juror's part is quite incompatible with the opinion's repeated insistence that the stricken juror must be of the same race as the defendant. It would be absurd to suppose that a black juror has a right not to be discriminated against, through peremptory strike, in the trial of a black defendant, but not in the trial of a white defendant.In sum, we have never held, or even said, that a juror has an equal protection right not to be excluded from a particular case through peremptory challenge; and the existence of such a right would call into question the continuing existence of a centuries-old system that has important beneficial effects. Thus, even if the Court's discussion of Powers' third-party standing to raise the rights of stricken jurors were correct, it would merely replace the mystery of why he has a cause of action with the mystery of why they do.IIIIn any event, the Court's third-party standing analysis is not correct. The Court fails to establish what we have described as the very first element of third-party standing: the requirement of "injury in fact." See, e. g., Caplin & Drysdale, Chartered v. United States, , n. 3 (1989); Secretary of State of Maryland v. Joseph H. Munson Co., . The Court's attempt at constructing an injury in fact to petitioner goes as follows: when the prosecution takes race into account in exercising its peremptory challenges, it "casts doubt on the integrity of the judicial process," and "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law," ante at 411, 412 (internal quotations omitted), as a result of which "[t]he verdict will not be accepted or understood [as fair]," ante at 413. The Court must, of course, speak in terms of the perception of fairness, rather than its reality, since only last Term we held categorically that the exclusion of members of a particular race from a jury does not produce an unfair jury, and suggested that, in some circumstances, it may increase fairness. See Holland, supra, at 480-481. But in any event, how do these alleged perceptions of unfairness, these "castings of doubt" and "invitations to cynicism," establish that the defendant has been injured in fact? They plainly do not. Every criminal defendant objecting to the introduction of some piece of evidence or to some trial procedure on the ground that it violates the rights of a third party can claim a similar "perception of unfairness," but we deny standing. "Injury in perception" would seem to be the very antithesis of "injury in fact." As the very words suggest, the latter sort of injury must be "distinct and palpable," Warth v. Seldin, (emphasis added), "particular [and] concrete," United States v. Richardson, (emphasis added), "specific [and] objective," Laird v. Tatum, (emphasis added). Today's opinion makes a mockery of that requirement. It does not even pretend that the peremptory challenges here have caused this defendant tangible injury and concrete harm - but rather (with careful selection of both adjectives and nouns) only a "cognizable injury," producing a "concrete interest in challenging the practice." Ante at 411 (emphasis added). I have no doubt he now has a cognizable injury; the Court has made it true by saying so. And I have no doubt he has a concrete interest in challenging the practice at issue here; he would have a concrete interest in challenging a mispronunciation of one of the jurors' names, if that would overturn his conviction. But none of this has anything to do with injury in fact.In response, however, it could be asserted that the requirement of injury in fact - and, more specifically, that element of the requirement which demands that the cause-and-effect relationship between the illegality and the alleged harm be more than speculative, see Allen v. Wright, ; Simon v. Eastern Kentucky Welfare Rights Organization, - has never been applied to a litigant's claim of illegality relating to an aspect of criminal or civil procedure. The available concrete injury in such cases, of course, is the conviction or judgment - or more precisely, the punishment that attends the conviction and the economic or other loss that attends the judgment. But courts have never required that injury to be connected with the alleged procedure-related illegality by anything more than speculation. If, for example, one of the elements of criminal due process has been denied, or one of the constitutionally specified attributes of a prosecution has been omitted, we do not require the defendant to establish, by more than speculation, that he would not otherwise have been convicted. To the contrary, standing is accorded, and relief will be granted unless the government can establish beyond a reasonable doubt that the error was harmless. See, e. g., Rose v. Clark, .We do not, however, extend this special treatment of injury in fact in the litigation context to third-party standing. Indeed, we do not even recognize third-party standing in the litigation context - that is, permit a civil or criminal litigant to upset an adverse judgment because the process by which it was obtained involved the violation of someone else's rights - even when the normal injury-in-fact standard is amply met. If, for example, the only evidence supporting a conviction (so that the causality is not remotely speculative) consists of the fruit of a search and seizure that violated a third party's Fourth Amendment rights, we will not permit those rights to be asserted by the defendant. See, e. g., Rawlings v. Kentucky, ; United States v. Payner, ; Rakas v. Illinois, . We would reach the same result with respect to reliable evidence obtained in violation of another person's Fifth Amendment right against self-incrimination, cf. id., at 140. Likewise (assuming we follow the common law) with respect to evidence introduced in violation of someone else's confidentiality privilege. See, e. g., Commonwealth v. McKenna, 206 Pa. Super. 317, 322, 213 A.2d 223, 226 (1965); Butz v. State, 221 Md. 68, 73, 156 A.2d 423, 426 (1959); see generally Annot., 2 A.L.R.2d 645 (1948). These cases can, to be sure, be explained on the basis that the rights in question are "personal," rather than on the basis of lack of third-party standing, but the result comes to the same. It is difficult to accept the proposition that, even though introduction of the fruits of a third party's illegally obtained confession, which unquestionably produces the defendant's conviction, is not a ground for reversal, racial discrimination against a prospective juror, which only speculatively produces the conviction, is. There is, in short, no sound basis for abandoning the normal injury-in-fact requirements applicable to third-party standing, and supplanting them with an "interest in challenging the practice" standard, simply because a trial-related violation is at issue. If anything, that consideration should lead to the conclusion that there is no third-party standing at all.IVLast Term, in Holland, we noted that "[t]he tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, ... was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, ... was recognized in an opinion by Justice Story to be part of the common law of the United States, ... and has endured through two centuries in all the States... ." 493 U.S., at 481. We concluded from this that "[a]ny theory of the Sixth Amendment leading to [the] result" that "each side may not ... use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side" is "implausible." Ibid. What is true with respect to the Sixth Amendment is true with respect to the Equal Protection Clause as well.Batson was, as noted earlier, a clear departure from our jurisprudence, and the precise scope of the exception it has created remains to be determined. It is unclear, for example, whether it applies to government peremptories in civil cases; whether it applies to peremptories by parties other than the government; and whether it applies to peremptories based on the defendant's sex, religion, age, economic status and any other personal characteristic unrelated to the capacity for responsible jury service. All these extensions are arguably within the logic of the decision. This case, however, involves not a clarification of Batson, but the creation of an additional, ultra-Batson departure from established law. Petitioner seeks not some further elaboration of the right to have his racial identity disregarded in the selection of his jury, but rather the announcement of a new right to have his jury immune from the exclusion of people of any race; or the announcement of a new power to assert a new right of jurors never to be excluded from any jury on the basis of their race. Not only does this exceed the rationale of Batson, but it exceeds Batson's emotional and symbolic justification as well. Notwithstanding history, precedent, and the significant benefits of the peremptory challenge system, it is intolerably offensive for the State to imprison a person on the basis of a conviction rendered by a jury from which members of that person's minority race were carefully excluded. I am unmoved, however, and I think most Americans would be, by this white defendant's complaint that he was sought to be tried by an all-white jury, or that he should be permitted to press black jurors' unlodged complaint that they were not allowed to sit in judgment of him.The Court's decision today is unprecedented in law, but not in approach. It is a reprise, so to speak, of Miranda v. Arizona, , in that the Court uses its key to the jail-house door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law. It goes beyond Miranda, however, in that there, at least, the mandated steps related to the defendant's own rights, if not to his guilt. Here they relate to neither. The sum and substance of the Court's lengthy analysis is that, since a denial of equal protection to other people occurred at the defendant's trial, though it did not affect the fairness of that trial, the defendant must go free. Even if I agreed that the exercise of peremptory strikes constitutes unlawful discrimination (which I do not), I would not understand why the release of a convicted murderer who has not been harmed by those strikes is an appropriate remedy.Judging from the Court's opinion, we can expect further, wide-ranging use of the jailhouse key to combat discrimination. Convictions are to be overturned, apparently, whenever "race is implicated in the trial" - "by casting doubt upon the credibility or dignity of a witness, or ... upon the standing or due regard of an attorney who appears in the cause," or even by suggesting "an alleged racial motivation of the defendant or a victim." Ante, at 412. To me, this makes no sense. Lofty aims do not justify every step intended to achieve them. Today's supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected. If for any reason the State is unable to reconvict Powers for the double murder at issue here, later victims may pay the price for our extravagance. Even if such a tragedy, in this or any case, never occurs, the prosecutorial efforts devoted to retrials will necessarily be withheld from other endeavors, as will the prosecutorial efforts devoted to meeting the innumerable Powers claims that defendants of all races can be relied upon to present - again with the result that crime goes unpunished and criminals go free.I respectfully dissent. |
0 | Per Curiam. Deputies of the Los Angeles County Sheriff's Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress. The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.I From September to December 2001, Los Angeles County Sheriff's Department Deputy Dennis Watters investigated a fraud and identity-theft crime ring. There were four suspects of the investigation. One had registered a 9-millimeter Glock handgun. The four suspects were known to be African-Americans. On December 11, Watters obtained a search warrant for two houses in Lancaster, California, where he believed he could find the suspects. The warrant authorized him to search the homes and three of the suspects for documents and computer files. In support of the search warrant an affidavit cited various sources showing the suspects resided at respondents' home. The sources included Department of Motor Vehicles reports, mailing address listings, an outstanding warrant, and an Internet telephone directory. In this Court respondents do not dispute the validity of the warrant or the means by which it was obtained. What Watters did not know was that one of the houses (the first to be searched) had been sold in September to a Max Rettele. He had purchased the home and moved into it three months earlier with his girlfriend Judy Sadler and Sadler's 17-year-old son Chase Hall. All three, respondents here, are Caucasians. On the morning of December 19, Watters briefed six other deputies in preparation for the search of the houses. Watters informed them they would be searching for three African-American suspects, one of whom owned a registered handgun. The possibility a suspect would be armed caused the deputies concern for their own safety. Watters had not obtained special permission for a night search, so he could not execute the warrant until 7 a.m. See Cal. Penal Code Ann. §1533 (West 2000). Around 7:15 Watters and six other deputies knocked on the door and announced their presence. Chase Hall answered. The deputies entered the house after ordering Hall to lie face down on the ground. The deputies' announcement awoke Rettele and Sadler. The deputies entered their bedroom with guns drawn and ordered them to get out of their bed and to show their hands. They protested that they were not wearing clothes. Rettele stood up and attempted to put on a pair of sweatpants, but deputies told him not to move. Sadler also stood up and attempted, without success, to cover herself with a sheet. Rettele and Sadler were held at gunpoint for one to two minutes before Rettele was allowed to retrieve a robe for Sadler. He was then permitted to dress. Rettele and Sadler left the bedroom within three to four minutes to sit on the couch in the living room. By that time the deputies realized they had made a mistake. They apologized to Rettele and Sadler, thanked them for not becoming upset, and left within five minutes. They proceeded to the other house the warrant authorized them to search, where they found three suspects. Those suspects were arrested and convicted. Rettele and Sadler, individually and as guardians ad litem for Hall, filed this §1983 suit against Los Angeles County, the Los Angeles County Sheriff's Department, Deputy Watters, and other members of the sheriff's department. Respondents alleged petitioners violated their Fourth Amendment rights by obtaining a warrant in reckless fashion and conducting an unreasonable search and detention. The District Court held that the warrant was obtained by proper procedures and the search was reasonable. It concluded in the alternative that any Fourth Amendment rights the deputies violated were not clearly established and that, as a result, the deputies were entitled to qualified immunity. On appeal respondents did not challenge the validity of the warrant; they did argue that the deputies had conducted the search in an unreasonable manner. A divided panel of the Court of Appeals for the Ninth Circuit reversed in an unpublished opinion. 186 Fed. Appx. 765 (2006). The majority held that"because (1) no African-Americans lived in [respondents'] home; (2) [respondents], a Caucasian couple, purchased the residence several months before the search and the deputies did not conduct an ownership inquiry; (3) the African-American suspects were not accused of a crime that required an emergency search; and (4) [respondents] were ordered out of bed naked and held at gunpoint while the deputies searched their bedroom for the suspects and a gun, we find that a reasonable jury could conclude that the search and detention were 'unnecessarily painful, degrading, or prolonged,' and involved 'an undue invasion of privacy,' Franklin v. Foxworth, 31 F. 3d 873, 876 (9th Cir. 1994)." Id., at 766.Turning to whether respondents' Fourth Amendment rights were clearly established, the majority held that a reasonable deputy should have known the search and detention were unlawful. Judge Cowen dissented. In his view the deputies had authority to detain respondents for the duration of the search and were justified in ordering respondents from their bed because weapons could have been concealed under the bedcovers. He also concluded that, assuming a constitutional violation, the law was not clearly established. The Court of Appeals denied rehearing and rehearing en banc.II Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that "[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies' safety." Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. In Michigan v. Summers, 452 U. S. 692 (1981), this Court held that officers executing a search warrant for contraband may "detain the occupants of the premises while a proper search is conducted." Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that "detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant." Id., at 703. Against that interest, it balanced "preventing flight in the event that incriminating evidence is found"; "minimizing the risk of harm to the officers"; and facilitating "the orderly completion of the search." Id., at 702-703; see Muehler v. Mena, 544 U. S. 93 (2005). In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id., at 98-100; see also id., at 103 (Kennedy, J., concurring); Summers, supra, at 704-705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a seizure of the person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396-399. The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F. 3d 788, 791 (CA9 2003) ("When [the suspect] put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him"); see also United States v. Jones, 336 F. 3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United States v. Hightower, 96 F. 3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his pillow); State v. Willis, 36,759-KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers "pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant's left hand had been"); State v. Kypreos, 115 Wash. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed). The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, "[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Summers, 452 U. S., at 702-703. This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that "special circumstances, or possibly a prolonged detention" might render a search unreasonable. See id., at 705, n. 21. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, "they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on." Deposition of Judy Lorraine Sadler in No. CV-0206262-RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55. The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated. As respondents' constitutional rights were not violated, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U. S. 194, 201 (2001). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Souter would deny the petition for a writ of certiorari.LOS ANGELES COUNTY, CALIFORNIA, et al. v. MAX RETTELE et al.on petition for writ of certiorari to the united states court of appeals for the ninth circuitNo. 06-605. Decided May 21, 2007 Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment. This case presents two separate questions: (1) whether the four circumstances identified in the Court of Appeals' unpublished opinion established a genuine issue of material fact as to whether the seizure violated respondents' Fourth Amendment rights, see ante, at 4; (2) whether the officers were nevertheless entitled to qualified immunity because the right was not clearly established. The fact that the judges on the Court of Appeals disagreed on both questions convinces me that they should not have announced their decision in an unpublished opinion. In answering the first question, the Ninth Circuit majority relied primarily on Franklin v. Foxworth, 31 F. 3d 873 (CA9 1994). As Judge Cowen's discussion of Franklin demonstrates, that case surely does not clearly establish the unconstitutionality of the officers' conduct.** Consequently, regardless of the proper answer to the constitutional question, the defendants were entitled to qualified immunity. I would reverse on that ground and disavow the unwise practice of deciding constitutional questions in advance of the necessity for doing so. See County of Sacramento v. Lewis, 523 U. S. 833, 859 (1998) (Stevens, J., concurring in judgment). Accordingly, I concur in the Court's judgment.FOOTNOTESFootnote ** See 186 Fed. Appx. 765, 767 (2006) (dissenting opinion) ("In Franklin v. Foxworth, 31 F.3d 873 (9th Cir. 1994), we found unconstitutional the officers' failure to provide clothing to a gravely ill man before exposing his genitals to twenty-three strangers for over two hours, under circumstances where there was no reason why the man was not given clothing. Id. at 876-78. We concluded that the detention was conducted in 'a manner that wantonly and callously subjected an obviously ill and incapacitated person to entirely unnecessary and unjustifiable degradation and suffering.' Id. at 878. Here, in contrast, Plaintiffs were not gravely ill, and their brief exposure, which lasted, at most, three or four minutes, was outweighed by the safety risks associated with allowing two occupants to remain in bed under covers during execution of a search warrant"). |
7 | In a suit by the United States, the District Court found that respondents who operate mills for the production of iron and related products, had, without first obtaining permits from the Chief of Engineers of the Army providing conditions for their removal, discharged through sewers into a navigable river of the United States industrial waste solids which, on settling out, had substantially reduced the depth of the channel: and it enjoined them from continuing to do so and ordered them to restore the depth of the channel by removing the deposits. Held: On the findings of the District Court, the deposit of industrial solids in the river by respondents created an "obstruction" to the "navigable capacity" of the river forbidden by 10 of the Rivers and Harbors Act of 1899; they were discharges forbidden by, and not exempt under, 13; and the District Court was authorized to grant injunctive relief. Pp. 483-493. (a) The discharge into a navigable river of industrial solids which reduce the depth of the channel creates an "obstruction" to the "navigable capacity" of the river within the meaning of 10 of the Act. Pp. 486-489. (b) The discharge of such industrial solids suspended in water flowing into a river through sewers is a discharge forbidden by 13 and is not exempted as "refuse matter ... flowing from ... sewers and passing therefrom in a liquid state." Pp. 489-491. (c) The District Court was authorized to grant injunctive relief in a suit by the United States. Pp. 491-492. 264 F.2d 289, reversed.Solicitor General Rankin argued the cause for the United States. With him on the brief were Assistant Attorney General Morton and Roger P. Marquis. Raymond T. Jackson argued the cause for Interlake Iron Corporation, respondent. With him on the brief were Warren Daane and Henry E. Seyfarth.Paul R. Conaghan argued the cause and filed a brief for Republic Steel Corporation, respondent.Peter A. Dammann and W. S. Bodman filed a brief for International Harvester Company, respondent.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This is a suit by the United States to enjoin respondent companies from depositing industrial solids in the Calumet River (which flows out of Lake Michigan and connects eventually with the Mississippi) without first obtaining a permit from the Chief of Engineers of the Army providing conditions for the removal of the deposits and to order and direct them to restore the depth of the channel to 21 feet by removing portions of existing deposits.The District Court found that the Calumet was used by vessels requiring a 21-foot draft, and that that depth has been maintained by the Corps of Engineers. Respondents, who operate mills on the banks of the river for the production of iron and related products, use large quantities of the water from the river, returning it through numerous sewers. The processes they use create industrial waste containing various solids. A substantial quantity of these solids is recovered in settling basins but, according to the findings, many fine particles are discharged into the river and they flocculate into larger units and are deposited in the river bottom. Soundings show a progressive decrease in the depth of the river in the vicinity of respondents' mills. But respondents have refused, since 1951, the demand of the Corps of Engineers that they dredge that portion of the river. The shoaling conditions being created in the vicinity of these plants were found by the District Court to be created by the waste discharged from the mills of respondents.1 This shoaling was found to have reduced the depth of the channel to 17 feet in some places and to 12 feet in others. The District Court made findings which credited respondents with 81.5% of the waste deposited in the channel, and it allocated that in various proportions among the three respondents. See 155 F. Supp. 442.The Court of Appeals did not review the sufficiency of evidence. It dealt only with questions of law and directed that the complaint be dismissed. 264 F.2d 289. The case is here on a petition for a writ of certiorari which we granted because of the public importance of the questions tendered. .Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U.S.C. 403, provides in part:2 "That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; ..." (Italics added.) The section goes on to outlaw various structures "in" any navigable waters except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that "it shall not be lawful to excavate or fill, or in any manner to alter or modify the ... capacity of ... the channel of any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."A criminal penalty is added by 12; and 12 further provides that the United States may sue to have "any structures or parts of structures erected" in violation of the Act removed. Section 17 directs the Department of Justice to "conduct the legal proceedings necessary to enforce" the provisions of the Act, including 10.Section 13 forbids the discharge of "any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States"; but 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him.Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an "obstruction" within the meaning of 10 of the Act and are discharges not exempt under 13. We also conclude that the District Court was authorized to grant the relief.The history of federal control over obstructions to the navigable capacity of our rivers and harbors goes back to Willamette Iron Bridge Co. v. Hatch, , where the Court held "there is no common law of the United States" which prohibits "obstructions" in our navigable rivers. Congress acted promptly, forbidding by 10 of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454, "the creation of any obstruction, not affirmatively authorized by law, to the navigable capacity" of any waters of the United States. The 1899 Act followed a report3 to Congress by the Secretary of War, which at the direction of Congress, 29 Stat. 234, contained a compilation and revision of existing laws relating to navigable waters. The 1899 Act was said to contain "no essential changes in the existing law."4 Certainly so far as outlawry of any "obstructions" in navigable rivers is concerned there was no change relevant to our present problem.It is argued that "obstruction" means some kind of structure. The design of 10 should be enough to refute that argument, since the ban of "any obstruction," unless approved by Congress, appears in the first part of 10, followed by a semicolon and another provision which bans various kinds of structures unless authorized by the Secretary of the Army.The reach of 10 seems plain. Certain types of structures, enumerated in the second clause, may not be erected "in" any navigable river without approval by the Secretary of the Army. Nor may excavations or fills, described in the third clause, that alter or modify "the course, location, condition, or capacity of" a navigable river be made unless "the work" has been approved by the Secretary of the Army. There is, apart from these particularized invasions of navigable rivers, which the Secretary of the Army may approve, the generalized first clause which prohibits "the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity" of such rivers. We can only conclude that Congress planned to ban any type of "obstruction," not merely those specifically made subject to approval by the Secretary of the Army. It seems, moreover, that the first clause being specifically aimed at "navigable capacity" serves an end that may at times be broader than those served by the other clauses. Some structures mentioned in the second clause may only deter movements in commerce, falling short of adversely affecting navigable capacity. And navigable capacity of a waterway may conceivably be affected by means other than the excavations and fills mentioned in the third clause. We would need to strain hard to conclude that the only obstructions banned by 10 are those enumerated in the second and third clauses. In short, the first clause is aimed at protecting "navigable capacity," though it is adversely affected in ways other than those specified in the other clauses.There is an argument that 10 of the 1890 Act, 26 Stat. 454, which was the predecessor of the section with which we are now concerned, used the words "any obstruction" in the narrow sense, embracing only the prior enumeration of obstructions in the preceding sections of the Act. The argument is a labored one which we do not stop to refute step by step. It is unnecessary to do so, for the Court in United States v. Rio Grande Irrigation Co., , decided not long after the 1890 Act became effective, gave the concept of "obstruction," as used in 10, a broad sweep: "It is not a prohibition of any obstruction to the navigation, but any obstruction to the navigable capacity, and anything, wherever done or however done, within the limits of the jurisdiction of the United States which tends to destroy the navigable capacity of one of the navigable waters of the United States, is within the terms of the prohibition." This broad construction given 10 of the 1890 Act was carried over to 10 of the 1899 Act in Sanitary District v. United States, , the Court citing United States v. Rio Grande Irrigation Co., supra, with approval and saying that 10 of the 1899 Act was "a broad expression of policy in unmistakable terms, advancing upon" 10 of the 1890 Act.The decision in Sanitary District v. United States, supra, seems to us to be decisive. There the Court affirmed a decree enjoining the diversion of water from Lake Michigan through this same river. Mr. Justice Holmes, writing for the Court, did not read 10 narrowly but in the spirit in which Congress moved to fill the gap created by Willamette Iron Bridge Co. v. Hatch, supra. That which affects the water level may, he said, amount to an "obstruction" within the meaning of 10:"Evidence is sufficient, if evidence is necessary, to show that a withdrawal of water on the scale directed by the statute of Illinois threatens and will affect the level of the Lakes, and that is a matter which cannot be done without the consent of the United States, even were there no international covenant in the case." Sanitary District v. United States, supra, 426. ... . ."There is neither reason nor opportunity for a construction that would not cover the present case. As now applied it concerns a change in the condition of the Lakes and the Chicago River, admitted to be navigable, and, if that be necessary, an obstruction to their navigable capacity ... ." Id., at 429. It is said that that case is distinguishable because it involved the erections of "structures," prohibited by the second clause of 10. The "structures" erected, however, were not "in" navigable waters. The Sanitary District had reversed the flow of the Chicago River, "formerly a little stream flowing into Lake Michigan," 266 U.S., at 424, and used it as a sluiceway to draw down the waters of the Great Lakes to a dangerous degree. Moreover, the Court did not rely on the second clause of 10 but on the first and the third. Id., at 428. The decree in that case did not run against any "structure"; it merely enjoined the diversion of water from Lake Michigan in excess of 250,000 cubic feet per minute.That broad construction of 10 was reaffirmed in Wisconsin v. Illinois, , another case involving the reduction of the water level of the Great Lakes by means of withdrawals through the Chicago River. And the Court, speaking through Chief Justice Taft (id., at 406, 414, 417), made clear that it adhered to what Mr. Justice Holmes had earlier said, "This withdrawal is prohibited by Congress, except so far as it may be authorized by the Secretary of War." Sanitary District v. United States, supra, at 429.The teaching of those cases is that the term "obstruction" as used in 10 is broad enough to include diminution of the navigable capacity of a waterway by means not included in the second or third clauses. In the Sanitary District case it was caused by lowering the water level. Here it is caused by clogging the channel with deposits of inorganic solids. Each affected the navigable "capacity" of the river. The concept of "obstruction" which was broad enough to include the former seems to us plainly adequate to include the latter.As noted, 13 bans the discharge in any navigable water of "any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state." The materials carried here are "industrial solids," as the District Court found. The particles creating the present obstruction were in suspension, not in solution. Articles in suspension, such as organic matter in sewage, may undergo chemical change. Others settle out. All matter in suspension is not saved by the exception clause in 13. Refuse flowing from "sewers" in a "liquid state" means to us "sewage." Any doubts are resolved by a consistent administrative construction which refused to give immunity to industrial wastes resulting in the deposit of solids in the very river in question.5 The fact that discharges from streets and sewers may contain some articles in suspension that settle out and potentially impair navigability6 is no reason for us to enlarge the group to include these industrial discharges. We follow the line Congress has drawn and cannot accept the invitation to broaden the exception in 13 because other matters "in a liquid state" might logically have been treated as favorably as sewage is treated. We read the 1899 Act charitably in light of the purpose to be served. The philosophy of the statement of Mr. Justice Holmes in New Jersey v. New York , that "A river is more than an amenity, it is a treasure," forbids a narrow, cramped reading either of 13 or of 10.The Court of Appeals concluded that even if violations were shown, no relief by injunction is permitted. Yet 17 provides, as we have seen, that "the Department of Justice shall conduct the legal proceedings necessary to enforce" the provisions of the Act, including 10. It is true that 12 in specifically providing for relief by injunction refers only to the removal of "structures" erected in violation of the Act (see United States v. Bigan, 274 F.2d 729), while 10 of the 1890 Act provided for the enjoining of any "obstruction." Here again Sanitary District v. United States, supra, is answer enough. It was argued in that case that relief by injunction was restricted to removal of "structures." See 266 U.S., at 408. But the Court replied, "The Attorney General by virtue of his office may bring this proceeding and no statute is necessary to authorize the suit."7 Id., at 426. The authority cited was United States v. San Jacinto Tin Co., , where a suit was brought by the Attorney General to set aside a fraudulent patent to public lands. The Court held that the Attorney General could bring suit, even though Congress had not given specific authority. The test was whether the United States had an interest to protect or defend. Section 10 of the present Act defines the interest of the United States which the injunction serves. Protection of the water level of the Great Lakes through injunctive relief, Sanitary District v. United States, supra, is precedent enough for ordering that the navigable capacity of the Calumet River be restored. The void which was left by Willamette Iron Bridge Co. v. Hatch, supra, need not be filled by detailed codes which provide for every contingency. Congress has legislated and made its purpose clear; it has provided enough federal law in 10 from which appropriate remedies may be fashioned even though they rest on inferences. Otherwise we impute to Congress a futility inconsistent with the great design of this legislation. This is for us the meaning of Sanitary District v. United States, supra, on this procedural point.8 Since the Court of Appeals dealt only with these questions of law and not with subsidiary questions raised by the appeal, we remand the case to it for proceedings in conformity with this opinion. Reversed. Memorandum of MR. JUSTICE FRANKFURTER, dissenting.In the absence of comprehensive legislation by Congress dealing with the matter, I would go a long way to sustain the power of the United States, as parens patriae, to enjoin a nuisance that seriously obstructs navigation. But that road to judicial relief in this case is, in light of Willamette Iron Bridge Co. v. Hatch, , barred by the Rivers and Harbors Act of 1899. For the reasons set forth by my Brother HARLAN, the structure and history of that Act, reflected by the very particularities of its provisions, make it unavailable for the situation now before the Court. |
8 | Under the Medicare Act, a provider seeking reimbursement for covered health services from respondent Secretary of Health and Human Services submits a yearly cost report to a fiscal intermediary (generally a private insurance company), which issues a Notice of Program Reimbursement (NPR) determining the provider's reimbursement for the year. The Act gives a dissatisfied provider 180 days to appeal a reimbursement determination to the Provider Reimbursement Review Board, whose decision is subject to judicial review in federal district court. 42 U. S. C. §1395oo. A regulation also gives the provider three years within which to ask the intermediary to reopen a determination. 42 CFR §405.1885. Petitioner provider did not seek administrative review of certain NPRs issued by its fiscal intermediary, but did within three years ask the intermediary to reopen the determination. The intermediary denied the request, and the Board dismissed petitioner's subsequent appeal of that denial on the ground that §405.1885 divested it of jurisdiction to review an intermediary's refusal to reopen a reimbursement determination. In dismissing petitioner's ensuing suit, the District Court agreed with the Board's determination and rejected petitioner's alternative contention that the federal-question statute or the mandamus statute gave the court jurisdiction to review the intermediary's refusal directly. The Court of Appeals affirmed.Held: 1. The Board does not have jurisdiction to review a fiscal intermediary's refusal to reopen a reimbursement determination. The regulations do not confer such jurisdiction, so petitioner must establish it on the basis of the Act. Section 1395oo(a)(1)(A)(i) authorizes a provider to obtain a hearing before the Board if the provider "is dissatisfied with a final determination of ... its fiscal intermediary ... as to the amount of total program reimbursement due the provider ... ." The Secretary's reading of §1395oo(a)(1)(A)(i)--that a refusal to reopen is not a "final determination ... as to the amount of ... reimbursement" but only a refusal to make a new determination — is well within the bounds of reasonable interpretation, and hence entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,467 U. S. 837, 842. The reasonableness of this construction is further confirmed by the holding in Califano v. Sanders,430 U. S. 99, that §205(g) of the Social Security Act does not authorize judicial review of the Secretary's decision not to reopen a previously adjudicated benefits claim. Finally, contrary to petitioner's argument, the Secretary's position is not inconsistent with §1395x(v)(1)(A)(ii)'s requirement that the cost-reimbursement regulations "provide for ... suitable retroactive corrective adjustments where, for a provider ... for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive." See Good Samaritan Hospital v. Shalala, 508 U. S. 402; ICC v. Locomotive Engineers, 482 U. S. 270, 282. Pp. 2-7. 2. Petitioner is not otherwise entitled to judicial review of the intermediary's reopening decision under the federal-question statute, see Heckler v. Ringer, 466 U. S. 602, 615, the mandamus statute, see id. at 617; ICC v. Locomotive Engineers,supra, at 282, or the judicial-review provision of the Administrative Procedure Act, see Califano v. Sanders, supra. Pp. 7-8.132 F. 3d 1135, affirmed. Scalia, J., delivered the opinion for a unanimous Court. YOUR HOME VISITING NURSE SERVICES, INC.,PETITIONER v. DONNA E. SHALALA, SECRE-TARY OF HEALTH AND HUMAN SERVICESon writ of certiorari to the united states court of appeals for the sixth circuit[February 23, 1999] Justice Scalia delivered the opinion of the Court. Under the Medicare Act, Title XVIII of the Social Security Act, 79 Stat. 290, as amended, 42 U. S. C. §1395 (1994 ed. and Sup. II), et seq., the Secretary of Health and Human Services reimburses the providers of covered health services to Medicare beneficiaries, see §§1395f(b)(1), 1395h, 1395x(v)(1)(A). A provider seeking such reimbursement submits a yearly cost report to a fiscal intermediary (generally a private insurance company) that acts as the Secretary's agent. See 42 CFR §405.1801(b) (1997). The intermediary analyzes the cost report and issues a Notice of Program Reimbursement (NPR) determining the amount of reimbursement to which the provider is entitled for the year. See §405.1803. As is relevant here, a dissatisfied provider has two ways to get this determination revised. First, a provision of the Medicare Act, 42 U. S. C. §1395oo, allows a provider to appeal, within 180 days, to the Provider Reimbursement Review Board (Board)--an administrative review panel that has the power to conduct an evidentiary hearing and affirm, modify, or reverse the intermediary's NPR determination. The Board's decision is subject to judicial review in federal district court. §1395oo(f). Second, one of the Secretary's regulations, 42 CFR §405.1885 (1997), permits a provider to request the intermediary, within three years, to reopen the reimbursement determination. Petitioner Your Home Visiting Nurse Services, Inc., owns and operates several entities that provide home health care services to Medicare beneficiaries. Petitioner submitted cost reports for the year 1989 to its fiscal intermediary, and did not seek administrative review of the resulting NPRs within 180 days. Within three years, however, it did ask the intermediary to reopen its 1989 reimbursement determination on the ground that "new and material" evidence demonstrated entitlement to additional compensation. The intermediary denied the request. Petitioner sought to appeal that denial to the Board, but the Board dismissed the appeal on the ground that §405.1885 divested it of jurisdiction to review an intermediary's refusal to reopen a reimbursement determination. Petitioner then brought the instant action in Federal District Court, seeking review of the Board's dismissal and of the intermediary's refusal to reopen. In an unpublished opinion, the District Court agreed that the Board lacked jurisdiction to review the refusal to reopen, and rejected petitioner's alternative contention that the federal-question statute, 28 U. S. C. §1331, or the mandamus statute, §1361, gave the District Court jurisdiction to review the intermediary's refusal directly. It accordingly dismissed the complaint. The Court of Appeals affirmed. 132 F. 3d 1135 (CA6 1997). We granted certiorari. 524 U. S. ___ (1998).I The primary issue in this case is whether the Board has jurisdiction to review a fiscal intermediary's refusal to reopen a reimbursement determination. The regulation that authorizes reopening provides that "[j]urisdiction for reopening a determination ... rests exclusively with that administrative body that rendered the last determination or decision." 42 CFR §405.1885(c) (1997). In this litigation, the Secretary defends the position set forth in the Medicare Provider Reimbursement Manual §2926, App. A, ¶ ;B.4 (Sept. 1993): "A refusal by the intermediary to grant a reopening requested by the provider is not appealable to the Board, pursuant to 42 CFR §405.1885(c) . . . ."1 The Secretary construes the regulation to mean that where, as here, the intermediary is the body that rendered the last determination with respect to the cost reports at issue, review by the Board of the intermediary's refusal to reopen would divest the intermediary of its "exclusiv[e]" "jurisdiction for reopening a determination." Petitioner, on the other hand, contends that "jurisdiction" in §405.1885(c) refers only to original jurisdiction over the reopening question, and not to appellate jurisdiction to review the intermediary's refusal. Even if it should win on this point, however, petitioner would only establish that the Board's otherwise extant appellate jurisdiction has not been excluded; it would still have to establish that the Board's appellate jurisdiction is somewhere conferred. Another regulation, §405.1889, says that an intermediary's affirmative decision to reopen and revise a reimbursement determination "shall be considered a separate and distinct determination" to which the regulations authorizing appeal to the Board are applicable; but it says nothing about appeal of a refusal to reopen. Petitioner must thus establish the Board's appellate jurisdiction on the basis of the unelaborated text of the Medicare Act itself. Petitioner relies upon 42 U. S. C. §1395oo(a)(1)(A)(i), which says that a provider may obtain a hearing before the Board with respect to a cost report if the provider "is dissatisfied with a final determination of ... its fiscal intermediary ... as to the amount of total program reimbursement due the provider ... for the period covered by such report ... ." Petitioner maintains that the refusal to reopen a reimbursement determination constitutes a separate "final determination ... as to the amount of total program reimbursement due the provider." The Secretary, on the other hand, maintains that this phrase does not include a refusal to reopen, which is not a "final determination ... as to the amount," but rather the refusal to make a new determination. The Secretary's reading of §1395oo(a)(1)(A)(i) frankly seems to us the more natural — but it is in any event well within the bounds of reasonable interpretation, and hence entitled to deference under Chevron v. Natural Resources Defense Council, Inc.,467 U. S. 837, 842 (1984). The reasonableness of the Secretary's construction of the statute is further confirmed by Califano v. Sanders, 430 U. S. 99 (1977), in which we held that §205(g) of the Social Security Act does not authorize judicial review of the Secretary's decision not to reopen a previously adjudicated claim for benefits.2 In reaching this conclusion we relied, in part, upon two considerations: that the opportunity to reopen a benefit adjudication was afforded only by regulation and not by the Social Security Act itself; and that judicial review of a reopening denial would frustrate the statutory purpose of imposing a 60-day limit on judicial review of the Secretary's final decision on an initial claim for benefits. Id., at 108. Similar considerations apply here. The right of a provider to seek reopening exists only by grace of the Secretary, and the statutory purpose of imposing a 180-day limit on the right to seek Board review of NPRs, see 42 U. S. C. §1395oo(a)(3), would be frustrated by permitting requests to reopen to be reviewed indefinitely. Finally, we do not think that the Secretary's position is inconsistent with 42 U. S. C. §1395x(v)(1)(A)(ii), which provides that the Secretary's cost-reimbursement regulations shall "provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive." Petitioner asserts that the reopening regulations, as construed by the Secretary, do not create a "suitable" procedure for making "retroactive corrective adjustments" because an intermediary's refusal to reopen a determination is not subject to administrative review. In support of this assertion, petitioner decries the "double standard" inherent in a procedure that allows the intermediary to reopen (during the 3-year period) for the purpose of recouping overpayments, but to deny reopening when alleged underpayments are at issue. This argument fails for two reasons. First, and most importantly, petitioner's construction of §1395x(v)(1)(A)(ii) is inconsistent with our decision in Good Samaritan Hospital v. Shalala, 508 U. S. 402 (1993), in which we held that the Secretary reasonably construed clause (ii) to refer to the year-end reconciliation of monthly payments to providers, see 42 U. S. C. §1395g, with the total amount of program reimbursement determined by the intermediary. Although we did not specifically consider the procedure for reopening determinations after the year's books are closed, we think our conclusion there — that clause (ii) refers to the year-end book balancing — forecloses petitioner's contention that clause (ii) requires any particular procedure for reopening reimbursement determinations. And second, the procedures for obtaining reimbursement would not be "unsuitable" simply because an intermediary's refusal to reopen is not administratively reviewable. Medicare providers already have the right under §1395oo(a)(3) to appeal an intermediary's reimbursement determination to the Board. Title 42 CFR §405.1885 (1997) generously gives them a second chance to get the decision changed — this time at the hands of the intermediary itself, but without the benefit of administrative review. That is a "suitable" procedure, especially in light of the traditional rule of administrative law that an agency's refusal to reopen a closed case is generally " `committed to agency discretion by law' " and therefore exempt from judicial review. See ICC v. Locomotive Engineers, 482 U. S. 270, 282 (1987). As for the alleged "double standard," given the administrative realities we would not be shocked by a system in which underpayments could never be the basis for reopening. The few dozen fiscal intermediaries often need three years within which to discover overpayments in the tens of thousands of NPRs that they issue, while each of the tens of thousands of sophisticated Medicare-provider recipients of these NPRs is generally capable of identifying an underpayment in its own NPR within the 180-day time period specified in 42 U. S. C. §1395oo(a)(3). Petitioner's invocation of gross unfairness is also refuted by the Secretary's representation that fiscal intermediaries grant between 30 and 40 percent of providers' requests to reopen reimbursement determinations. Brief for Respondent 27, n. 11.II We also reject petitioner's fallback argument that it is entitled to judicial review of the intermediary's refusal to reopen. First, judicial review under the federal-question statute, 28 U. S. C. §1331, is precluded by 42 U. S. C. §405(h), applicable to the Medicare Act by operation of §1395ii, which provides that "[n]o action against ... the [Secretary] or any officer or employee thereof shall be brought under section 1331 ... of title 28 to recover on any claim arising under this subchapter." Petitioner's claim "arises under" the Medicare Act within the meaning of this provision because " `both the standing and the substantive basis for the presentation' " of the claim are the Medicare Act. Heckler v. Ringer, 466 U. S. 602, 615 (1984). Second, the lower courts properly declined to issue mandamus to order petitioner's fiscal intermediary to reopen its 1989 reimbursement determination. Even if mandamus were available for claims arising under the Social Security and Medicare Acts,3 petitioner would still not be entitled to mandamus relief because it has not shown the existence of a "clear nondiscretionary duty," Ringer, supra, at 617, to reopen the reimbursement determination at issue. The reopening regulations do not require reopening, but merely permit it: "A determination of an intermediary ... may be reopened ... by such intermediary ... on the motion of the provider affected by such determination," 42 CFR §405.1885(a) (1997) (emphasis added). To be sure, the Secretary's Medicare Reimbursement Provider Manual §2931.2 (Feb. 1985) does provide that "[w]hether or not the intermediary will reopen a determination, otherwise final, will depend upon whether (1) new and material evidence has been submitted, (2) a clear and obvious error was made, or (3) the determination is found to be inconsistent with the law, regulations and rulings, or general instructions." But we hardly think that this disjunctive listing of factors was meant to convert a discretionary function into a mandatory one. As to factor (1), for example, it seems to us inconceivable that the existence of new and material evidence would alone require reopening, no matter how unpersuasive that evidence might be. The present case, we might note, involves evidence that was already before the intermediary at the time of its decision. The holding of ICC v. Locomotive Engineers, supra, that the decision whether to reopen, at least where no new evidence is at issue, is "committed to agency discretion by law" within the meaning of the Administrative Procedure Act, and hence unreviewable, see id., at 282, is squarely applicable. The last point alone would suffice to defeat petitioner's suggestion that we grant it the relief it requests under the judicial-review provision of the Administrative Procedure Act, 5 U. S. C. §706. In addition, however, we have long held that this provision is not an independent grant of subject-matter jurisdiction. Califano v. Sanders, 430 U. S. 99 (1977).* * * For the foregoing reasons, the judgment of the Court of Appeals is affirmed.It is so ordered.FOOTNOTESFootnote 1 The clause immediately following the quoted portion of the Medicare Provider Reimbursement Manual reads "except for providers which are located within the jurisdiction of the U. S. Ninth Circuit Court of Appeals, where such a refusal to reopen is appealable." §2926, App. A, ¶ ;B.4. This exception obviously reflects, not an inconsistency in the Secretary's position, but an acknowledgement of the Ninth Circuit's rejection of that position. See Oregon v. Bowen, 854 F. 2d 346 (1988).Footnote 2 The relevant portion of §205(g), as set forth in 42 U. S. C. §405(g) (1970 ed.), provided that "[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days ... ." See Califano v. Sanders, 430 U. S., at 108.Footnote 3 The Secretary urges us to hold that mandamus is altogether unavailable to review claims arising under the Medicare Act, in light of the second sentence of 42 U. S. C. §405(h), which provides that "[n]o findings of fact or decision of the [Secretary] shall be reviewed by any person, tribunal, or governmental agency except as" provided in the Medicare Act itself. We have avoided deciding this issue in the past, see, e.g.,Heckler v. Ringer, 466 U. S. 602, 616-17 (1984), and we again find it unnecessary to reach it today. |
0 | Upon the basis of evidence indicating that alcohol and drug abuse by railroad employees had caused or contributed to a number of significant train accidents, the Federal Railroad Administration (FRA) promulgated regulations under petitioner Secretary of Transportation's statutory authority to adopt safety standards for the industry. Among other things, Subpart C of the regulations requires railroads to see that blood and urine tests of covered employees are conducted following certain major train accidents or incidents, while Subpart D authorizes, but does not require, railroads to administer breath or urine tests or both to covered employees who violate certain safety rules. Respondents, the Railway Labor Executives' Association and various of its member labor organizations, brought suit in the Federal District Court to enjoin the regulations. The court granted summary judgment for petitioners, concluding that the regulations did not violate the Fourth Amendment. The Court of Appeals reversed, ruling, inter alia, that a requirement of particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable under the Fourth Amendment. The court stated that such a requirement would ensure that the tests, which reveal the presence of drug metabolites that may remain in the body for weeks following ingestion, are confined to the detection of current impairment.Held: 1. The Fourth Amendment is applicable to the drug and alcohol testing mandated or authorized by the FRA regulations. Pp. 613-618. (a) The tests in question cannot be viewed as private action outside the reach of the Fourth Amendment. A railroad that complies with Subpart C does so by compulsion of sovereign authority and therefore must be viewed as an instrument or agent of the Government. Similarly, even though Subpart D does not compel railroads to test, it cannot be concluded, in the context of this facial challenge, that such testing will be primarily the result of private initiative, since specific features of the regulations combine to establish that the Government has actively encouraged, endorsed, and participated in the testing. Specifically, since the regulations pre-empt state laws covering the same subject matter and are intended to supersede collective-bargaining and arbitration-award provisions, the Government has removed all legal barriers to the testing authorized by Subpart D. Moreover, by conferring upon the FRA the right to receive biological samples and test results procured by railroads, Subpart D makes plain a strong preference for testing and a governmental desire to share the fruits of such intrusions. In addition, the regulations mandate that railroads not bargain away their Subpart D testing authority and provide that an employee who refuses to submit to such tests must be withdrawn from covered service. Pp. 614-616. (b) The collection and subsequent analysis of the biological samples required or authorized by the regulations constitute searches of the person subject to the Fourth Amendment. This Court has long recognized that a compelled intrusion into the body for blood to be tested for alcohol content and the ensuing chemical analysis constitute searches. Similarly, subjecting a person to the breath test authorized by Subpart D must be deemed a search, since it requires the production of "deep lung" breath and thereby implicates concerns about bodily integrity. Moreover, although the collection and testing of urine under the regulations do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information and the act of urination that society has long recognized as reasonable. Even if the employer's antecedent interference with the employee's freedom of movement cannot be characterized as an independent Fourth Amendment seizure, any limitation on that freedom that is necessary to obtain the samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches affected by the testing program. Pp. 616-618. 2. The drug and alcohol tests mandated or authorized by the FRA regulations are reasonable under the Fourth Amendment even though there is no requirement of a warrant or a reasonable suspicion that any particular employee may be impaired, since, on the present record, the compelling governmental interests served by the regulations outweigh employees' privacy concerns. Pp. 618-633. (a) The Government's interest in regulating the conduct of railroad employees engaged in safety-sensitive tasks in order to ensure the safety of the traveling public and of the employees themselves plainly justifies prohibiting such employees from using alcohol or drugs while on duty or on call for duty and the exercise of supervision to assure that the restrictions are in fact observed. That interest presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements. Pp. 618-621. (b) Imposing a warrant requirement in the present context is not essential to render the intrusions at issue reasonable. Such a requirement would do little to further the purposes of a warrant, since both the circumstances justifying toxicological testing and the permissible limits of such intrusions are narrowly and specifically defined by the regulations and doubtless are well known to covered employees, and since there are virtually no facts for a neutral magistrate to evaluate, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program. Moreover, imposing a warrant requirement would significantly hinder, and in many cases frustrate, the objectives of the testing program, since the delay necessary to procure a warrant could result in the destruction of valuable evidence, in that alcohol and drugs are eliminated from the bloodstream at a constant rate, and since the railroad supervisors who set the testing process in motion have little familiarity with the intricacies of Fourth Amendment jurisprudence. Pp. 621-624. (c) Imposing an individualized suspicion requirement in the present context is not essential to render the intrusions at issue reasonable. The testing procedures contemplated by the regulations pose only limited threats to covered employees' justifiable privacy expectations, particularly since they participate in an industry subject to pervasive safety regulation by the Federal and State Governments. Moreover, because employees ordinarily consent to significant employer-imposed restrictions on their freedom of movement, any additional interference with that freedom that occurs in the time it takes to procure a sample from a railroad employee is minimal. Furthermore, Schmerber v. California, , established that governmentally imposed blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the breath tests authorized by Subpart D are even less intrusive than blood tests. And, although urine tests require employees to perform an excretory function traditionally shielded by great privacy, the regulations reduce the intrusiveness of the collection process by requiring that samples be furnished in a medical environment without direct observation. In contrast, the governmental interest in testing without a showing of individualized suspicion is compelling. A substance-impaired railroad employee in a safety-sensitive job can cause great human loss before any signs of the impairment become noticeable, and the regulations supply an effective means of deterring such employees from using drugs or alcohol by putting them on notice that they are likely to be discovered if an accident occurs. An individualized suspicion requirement would also impede railroads' ability to obtain valuable information about the causes of accidents or incidents and how to protect the public, since obtaining evidence giving rise to the suspicion that a particular employee is impaired is impracticable in the chaotic aftermath of an accident when it is difficult to determine which employees contributed to the occurrence and objective indicia of impairment are absent. The Court of Appeals' conclusion that the regulations are unreasonable because the tests in question cannot measure current impairment is flawed. Even if urine test results disclosed nothing more specific than the recent use of controlled substances, this information would provide the basis for a further investigation and might allow the FRA to reach an informed judgment as to how the particular accident occurred. More importantly, the court overlooked the FRA's policy of placing principal reliance on blood tests, which unquestionably can identify recent drug use, and failed to recognize that the regulations are designed not only to discern impairment but to deter it. Pp. 624-632. 839 F.2d 575, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in all but portions of Part III of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 634. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 635.Attorney General Thornburgh argued the cause for petitioners. On the briefs were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Deputy Assistant Attorneys General Spears and Cynkar, Lawrence S. Robbins, Leonard Schaitman, Marc Richman, B. Wayne Vance, S. Mark Lindsey, and Daniel Carey Smith.Lawrence M. Mann argued the cause for respondents. With him on the brief were W. David Holsberry, Harold A. Ross, and Clinton J. Miller III.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Public Transit Association by Donald T. Bliss; for the Bendiner-Schlesinger Laboratory et al. by David G. Evans and William J. Judge; for the California Employment Law Council by Victor Schachter; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Stephen C. Yohay, and Garen E. Dodge; for the National Railroad Passenger Corporation et al. by Erwin N. Griswold; for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso; for the Private Truck Council of America, Inc., et al. by Peter A. Susser, William H. Borghesani, Jr., G. William Frick, and Alan B. Friedlander; and for Thomas Colley et al. by John G. Kester, John J. Buckley, Jr., Stephen L. Urbanczyk, William C. Sammons, Stanley J. Glod, Charles I. Appler, Thomas L. Bright, Robert W. Katz, William L. Pope, and Bertram D. Fisher.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by James D. Holzhauer, John A. Powell, Stephen R. Shapiro, Harvey Grossman, and Edward M. Chen; and for the American Federation of Labor and Congress of Industrial Organizations by David Silberman and Laurence Gold.Scott D. Raphael filed a brief for the Aircraft Owners & Pilots Association as amicus curiae. JUSTICE KENNEDY delivered the opinion of the Court.The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety." 84 Stat. 971, 45 U.S.C. 431(a). Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate blood and urine tests of employees who are involved in certain train accidents. The FRA also has adopted regulations that do not require, but do authorize, railroads to administer breath and urine tests to employees who violate certain safety rules. The question presented by this case is whether these regulations violate the Fourth Amendment.IAThe problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago. For many years, railroads have prohibited operating employees from possessing alcohol or being intoxicated while on duty and from consuming alcoholic beverages while subject to being called for duty. More recently, these proscriptions have been expanded to forbid possession or use of certain drugs. These restrictions are embodied in "Rule G," an industry-wide operating rule promulgated by the Association of American Railroads, and are enforced, in various formulations, by virtually every railroad in the country. The customary sanction for Rule G violations is dismissal.In July 1983, the FRA expressed concern that these industry efforts were not adequate to curb alcohol and drug abuse by railroad employees. The FRA pointed to evidence indicating that on-the-job intoxication was a significant problem in the railroad industry.1 The FRA also found, after a review of accident investigation reports, that from 1972 to 1983 "the nation's railroads experienced at least 21 significant train accidents involving alcohol or drug use as a probable cause or contributing factor," and that these accidents "resulted in 25 fatalities, 61 non-fatal injuries, and property damage estimated at $19 million (approximately $27 million in 1982 dollars)." 48 Fed. Reg. 30726 (1983). The FRA further identified "an additional 17 fatalities to operating employees working on or around rail rolling stock that involved alcohol or drugs as a contributing factor." Ibid. In light of these problems, the FRA solicited comments from interested parties on a various regulatory approaches to the problems of alcohol and drug abuse throughout the Nation's railroad system.Comments submitted in response to this request indicated that railroads were able to detect a relatively small number of Rule G violations, owing, primarily, to their practice of relying on observation by supervisors and co-workers to enforce the rule. 49 Fed. Reg. 24266-24267 (1984). At the same time, "industry participants ... confirmed that alcohol and drug use [did] occur on the railroads with unacceptable frequency," and available information from all sources "suggest[ed] that the problem includ[ed] `pockets' of drinking and drug use involving multiple crew members (before and during work), sporadic cases of individuals reporting to work impaired, and repeated drinking and drug use by individual employees who are chemically or psychologically dependent on those substances." Id., at 24253-24254. "Even without the benefit of regular post-accident testing," the FRA "identified 34 fatalities, 66 injuries and over $28 million in property damage (in 1983 dollars) that resulted from the errors of alcohol and drug-impaired employees in 45 train accidents and train incidents during the period 1975 through 1983." Id., at 24254. Some of these accidents resulted in the release of hazardous materials and, in one case, the ensuing pollution required the evacuation of an entire Louisiana community. Id., at 24254, 24259. In view of the obvious safety hazards of drug and alcohol use by railroad employees, the FRA announced in June 1984 its intention to promulgate federal regulations on the subject.BAfter reviewing further comments from representatives of the railroad industry, labor groups, and the general public, the FRA, in 1985, promulgated regulations addressing the problem of alcohol and drugs on the railroads. The final regulations apply to employees assigned to perform service subject to the Hours of Service Act, ch. 2939, 34 Stat. 1415, as amended, 45 U.S.C. 61 et seq. The regulations prohibit covered employees from using or possessing alcohol or any controlled substance. 49 CFR 219.101(a)(1) (1987). The regulations further prohibit those employees from reporting for covered service while under the influence of, or impaired by, alcohol, while having a blood alcohol concentration of 0.04 or more, or while under the influence of, or impaired by, any controlled substance. 219.101(a)(2). The regulations do not restrict, however, a railroad's authority to impose an absolute prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ, 219.101(c), and, accordingly, they do not "replace Rule G or render it unenforceable." 50 Fed. Reg. 31538 (1985).To the extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is entitled "Post-Accident Toxicological Testing," is mandatory. It provides that railroads "shall take all practicable steps to assure that all covered employees of the railroad directly involved ... provide blood and urine samples for toxicological testing by FRA," 219.203(a), upon the occurrence of certain specified events. Toxicological testing is required following a "major train accident," which is defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of $500,000 or more. 219.201 (a)(1). The railroad has the further duty of collecting blood and urine samples for testing after an "impact accident," which is defined as a collision that results in a reportable injury, or in damage to railroad property of $50,000 or more. 219.201(a)(2). Finally, the railroad is also obligated to test after "[a]ny train incident that involves a fatality to any on-duty railroad employee." 219.201(a)(3).After occurrence of an event which activates its duty to test, the railroad must transport all crew members and other covered employees directly involved in the accident or incident to an independent medical facility, where both blood and urine samples must be obtained from each employee.2 After the samples have been collected, the railroad is required to ship them by prepaid air freight to the FRA laboratory for analysis. 219.205(d). There, the samples are analyzed using "state-of-the-art equipment and techniques" to detect and measure alcohol and drugs.3 The FRA proposes to place primary reliance on analysis of blood samples, as blood is "the only available body fluid ... that can provide a clear indication not only of the presence of alcohol and drugs but also their current impairment effects." 49 Fed. Reg. 24291 (1984). Urine samples are also necessary, however, because drug traces remain in the urine longer than in blood, and in some cases it will not be possible to transport employees to a medical facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those instances, a "positive urine test, taken with specific information on the pattern of elimination for the particular drug and other information on the behavior of the employee and the circumstances of the accident, may be crucial to the determination of" the cause of an accident. Ibid.The regulations require that the FRA notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report. See 219.211(a)(2). Employees who refuse to provide required blood or urine samples may not perform covered service for nine months, but they are entitled to a hearing concerning their refusal to take the test. 219.213.Subpart D of the regulations, which is entitled "Authorization to Test for Cause," is permissive. It authorizes railroads to require covered employees to submit to breath or urine tests in certain circumstances not addressed by Subpart C. Breath or urine tests, or both, may be ordered (1) after a reportable accident or incident, where a supervisor has a "reasonable suspicion" that an employee's acts or omissions contributed to the occurrence or severity of the accident or incident, 219.301(b)(2); or (2) in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding, 219.301(b)(3). A railroad also may require breath tests where a supervisor has a "reasonable suspicion" that an employee is under the influence of alcohol, based upon specific, personal observations concerning the appearance, behavior, speech, or body odors of the employee. 219.301(b)(1). Where impairment is suspected, a railroad, in addition, may require urine tests, but only if two supervisors make the appropriate determination, 219.301(c)(2)(i), and, where the supervisors suspect impairment due to a substance other than alcohol, at least one of those supervisors must have received specialized training in detecting the signs of drug intoxication, 219.301(c)(2)(ii).Subpart D further provides that whenever the results of either breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility. 219.303(c). If an employee declines to give a blood sample, the railroad may presume impairment, absent persuasive evidence to the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed notice of this presumption to its employees, and advise them of their right to provide a contemporaneous blood sample. As in the case of samples procured under Subpart C, the regulations set forth procedures for the collection of samples, and require that samples "be analyzed by a method that is reliable within known tolerances." 219.307(b).CRespondents, the Railway Labor Executives' Association and various of its member labor organizations, brought the instant suit in the United States District Court for the Northern District of California, seeking to enjoin the FRA's regulations on various statutory and constitutional grounds. In a ruling from the bench, the District Court granted summary judgment in petitioners' favor. The court concluded that railroad employees "have a valid interest in the integrity of their own bodies" that deserved protection under the Fourth Amendment. App. to Pet. for Cert. 53a. The court held, however, that this interest was outweighed by the competing "public and governmental interest in the ... promotion of ... railway safety, safety for employees, and safety for the general public that is involved with the transportation." Id., at 52a. The District Court found respondents' other constitutional and statutory arguments meritless.A divided panel of the Court of Appeals for the Ninth Circuit reversed. Railway Labor Executives' Assn. v. Burnley, 839 F.2d 575 (1988). The court held, first, that tests mandated by a railroad in reliance on the authority conferred by Subpart D involve sufficient Government action to implicate the Fourth Amendment, and that the breath, blood, and urine tests contemplated by the FRA regulations are Fourth Amendment searches. The court also "agre[ed] that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant." Id., at 583. The court further held that "accommodation of railroad employees' privacy interest with the significant safety concerns of the government does not require adherence to a probable cause requirement," and, accordingly, that the legality of the searches contemplated by the FRA regulations depends on their reasonableness under all the circumstances. Id., at 587.The court concluded, however, that particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable. Ibid. A requirement of individualized suspicion, the court stated, would impose "no insuperable burden on the government," id., at 588, and would ensure that the tests are confined to the detection of current impairment, rather than to the discovery of "the metabolites of various drugs, which are not evidence of current intoxication and may remain in the body for days or weeks after the ingestion of the drug." Id., at 588-589. Except for the provisions authorizing breath and urine tests on a "reasonable suspicion" of drug or alcohol impairment, 49 CFR 219.301(b)(1) and (c)(2) (1987), the FRA regulations did not require a showing of individualized suspicion, and, accordingly, the court invalidated them.Judge Alarcon dissented. He criticized the majority for "fail[ing] to engage in [a] balancing of interests" and for focusing instead "solely on the degree of impairment of the workers' privacy interests." 839 F.2d, at 597. The dissent would have held that "the government's compelling need to assure railroad safety by controlling drug use among railway personnel outweighs the need to protect privacy interests." Id., at 596.We granted the federal parties' petition for a writ of certiorari, , to consider whether the regulations invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse.IIThe Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ... ." The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction. Camara v. Municipal Court of San Francisco, . See also Delaware v. Prouse, ; United States v. Martinez-Fuerte, . Before we consider whether the tests in question are reasonable under the Fourth Amendment, we must inquire whether the tests are attributable to the Government or its agents, and whether they amount to searches or seizures. We turn to those matters.AAlthough the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. See United States v. Jacobsen, ; Coolidge v. New Hampshire, . See also Burdeau v. McDowell, . A railroad that complies with the provisions of Subpart C of the regulations does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment. Petitioners contend, however, that the Fourth Amendment is not implicated by Subpart D of the regulations, as nothing in Subpart D compels any testing by private railroads.We are unwilling to conclude, in the context of this facial challenge, that breath and urine tests required by private railroads in reliance on Subpart D will not implicate the Fourth Amendment. Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, cf. Lustig v. United States, (plurality opinion); Byars v. United States, , a question that can only be resolved "in light of all the circumstances," Coolidge v. New Hampshire, supra, at 487. The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct.The regulations, including those in Subpart D, pre-empt state laws, rules, or regulations covering the same subject matter, 49 CFR 219.13(a) (1987), and are intended to supersede "any provision of a collective bargaining agreement, or arbitration award construing such an agreement," 50 Fed. Reg. 31552 (1985). They also confer upon the FRA the right to receive certain biological samples and test results procured by railroads pursuant to Subpart D. 219.11(c). In addition, a railroad may not divest itself of, or otherwise compromise by contract, the authority conferred by Subpart D. As the FRA explained, such "authority ... is conferred for the purpose of promoting the public safety, and a railroad may not shackle itself in a way inconsistent with its duty to promote the public safety." 50 Fed. Reg. 31552 (1985). Nor is a covered employee free to decline his employer's request to submit to breath or urine tests under the conditions set forth in Subpart D. See 219.11(b). An employee who refuses to submit to the tests must be withdrawn from covered service. See 4 App. to Field Manual 18.In light of these provisions, we are unwilling to accept petitioners' submission that tests conducted by private railroads in reliance on Subpart D will be primarily the result of private initiative. The Government has removed all legal barriers to the testing authorized by Subpart D, and indeed has made plain not only its strong preference for testing, but also its desire to share the fruits of such intrusions. In addition, it has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D. These are clear indices of the Government's encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment.BOur precedents teach that where, as here, the Government seeks to obtain physical evidence from a person, the Fourth Amendment may be relevant at several levels. See, e. g., United States v. Dionisio, . The initial detention necessary to procure the evidence may be a seizure of the person, Cupp v. Murphy, ; Davis v. Mississippi, , if the detention amounts to a meaningful interference with his freedom of movement. INS v. Delgado, ; United States v. Jacobsen, supra, at 113, n. 5. Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 295; United States v. Dionisio, supra, at 8, 13-14, if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e. g., California v. Greenwood, ; United States v. Jacobsen, supra, at 113.We have long recognized that a "compelled intrusio[n] into the body for blood to be analyzed for alcohol content" must be deemed a Fourth Amendment search. See Schmerber v. California, . See also Winston v. Lee, . In light of our society's concern for the security of one's person, see, e. g., Terry v. Ohio, , it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee's privacy interests. Cf. Arizona v. Hicks, . Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or "deep lung" breath for chemical analysis, see, e. g., California v. Trombetta, , implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, .Unlike the blood-testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated:"There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom." National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (1987). Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.4 In view of our conclusion that the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches, we need not characterize the employer's antecedent interference with the employee's freedom of movement as an independent Fourth Amendment seizure. As our precedents indicate, not every governmental interference with an individual's freedom of movement raises such constitutional concerns that there is a seizure of the person. See United States v. Dionisio, supra, at 9-11 (grand jury subpoena, though enforceable by contempt, does not effect a seizure of the person); United States v. Mara, (same). For present purposes, it suffices to note that any limitation on an employee's freedom of movement that is necessary to obtain the blood, urine, or breath samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches effected by the Government's testing program. Cf. United States v. Place, .IIIATo hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the FRA regulations is only to begin the inquiry into the standards governing such intrusions. O'Connor v. Ortega, (plurality opinion); New Jersey v. T. L. O., . For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. United States v. Sharpe, ; Schmerber v. California, 384 U.S., at 768. What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, . Thus, the permissibility of a particular practice "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S., at 654; United States v. Martinez-Fuerte, .In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, supra, at 701, and n. 2; United States v. United States District Court, . Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. See, e. g., Payton v. New York, ; Mincey v. Arizona, . We have recognized exceptions to this rule, however, "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Griffin v. Wisconsin, , quoting New Jersey v. T. L. O., supra, at 351 (BLACKMUN, J., concurring in judgment). When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context. See, e. g., Griffin v. Wisconsin, supra, at 873 (search of probationer's home); New York v. Burger, (search of premises of certain highly regulated businesses); O'Connor v. Ortega, supra, at 721-725 (work-related searches of employees' desks and offices); New Jersey v. T. L. O., supra, at 337-342 (search of student's property by school officials); Bell v. Wolfish, (body cavity searches of prison inmates).The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, "likewise presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements." Griffin v. Wisconsin, supra, at 873-874. The hours of service employees covered by the FRA regulations include persons engaged in handling orders concerning train movements, operating crews, and those engaged in the maintenance and repair of signal systems. 50 Fed. Reg. 31511 (1985). It is undisputed that these and other covered employees are engaged in safety-sensitive tasks. The FRA so found, and respondents conceded the point at oral argument. Tr. of Oral Arg. 46-47. As we have recognized, the whole premise of the Hours of Service Act is that "[t]he length of hours of service has direct relation to the efficiency of the human agencies upon which protection [of] life and property necessarily depends." Baltimore & Ohio R. Co. v. ICC, . See also Atchison, T. & S. F. R. Co. v. United States, ("[I]t must be remembered that the purpose of the act was to prevent the dangers which must necessarily arise to the employee and to the public from continuing men in a dangerous and hazardous business for periods so long as to render them unfit to give that service which is essential to the protection of themselves and those entrusted to their care").The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather "to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs." 49 CFR 219.1(a) (1987).5 This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also "require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed." Griffin v. Wisconsin, supra, at 875. The question that remains, then, is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.BAn essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope. See, e. g., New York v. Burger, supra, at 703; United States v. Chadwick, ; Camara v. Municipal Court of San Francisco, 387 U.S., at 532. A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case. See United States v. Chadwick, supra, at 9. In the present context, however, a warrant would do little to further these aims. Both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees. Cf. United States v. Biswell, . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate. Cf. Colorado v. Bertine, (BLACKMUN, J., concurring).6 We have recognized, moreover, that the government's interest in dispensing with the warrant requirement is at its strongest when, as here, "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court of San Francisco, supra, at 533. See also New Jersey v. T. L. O., 469 U.S., at 340; Donovan v. Dewey, . As the FRA recognized, alcohol and other drugs are eliminated from the bloodstream at a constant rate, see 49 Fed. Reg. 24291 (1984), and blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible. See Schmerber v. California, 384 U.S., at 770-771. Although the metabolites of some drugs remain in the urine for longer periods of time and may enable the FRA to estimate whether the employee was impaired by those drugs at the time of a covered accident, incident, or rule violation, 49 Fed. Reg. 24291 (1984), the delay necessary to procure a warrant nevertheless may result in the destruction of valuable evidence.The Government's need to rely on private railroads to set the testing process in motion also indicates that insistence on a warrant requirement would impede the achievement of the Government's objective. Railroad supervisors, like school officials, see New Jersey v. T. L. O., supra, at 339-340, and hospital administrators, see O'Connor v. Ortega, 480 U.S., at 722, are not in the business of investigating violations of the criminal laws or enforcing administrative codes, and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence. "Imposing unwieldy warrant procedures ... upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable." Ibid.In sum, imposing a warrant requirement in the present context would add little to the assurances of certainty and regularity already afforded by the regulations, while significantly hindering, and in many cases frustrating, the objectives of the Government's testing program. We do not believe that a warrant is essential to render the intrusions here at issue reasonable under the Fourth Amendment.COur cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T. L. O., supra, at 340. When the balance of interests precludes insistence on a showing of probable cause, we have usually required "some quantum of individualized suspicion" before concluding that a search is reasonable. See, e. g., United States v. Martinez-Fuerte, 428 U.S., at 560. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. Id., at 561. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.By and large, intrusions on privacy under the FRA regulations are limited. To the extent transportation and like restrictions are necessary to procure the requisite blood, breath, and urine samples for testing, this interference alone is minimal given the employment context in which it takes place. Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for his employment, and few are free to come and go as they please during working hours. See, e. g., INS v. Delgado, 466 U.S., at 218. Any additional interference with a railroad employee's freedom of movement that occurs in the time it takes to procure a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests.Our decision in Schmerber v. California, supra, indicates that the same is true of the blood tests required by the FRA regulations. In that case, we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the intrusion. We noted that the test was performed in a reasonable manner, as the motorist's "blood was taken by a physician in a hospital environment according to accepted medical practices." Id., at 771. We said also that the intrusion occasioned by a blood test is not significant, since such "tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain." Ibid. Schmerber thus confirmed "society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity." Winston v. Lee, 470 U.S., at 762. See also South Dakota v. Neville, ("The simple blood-alcohol test is ... safe, painless, and commonplace"); Breithaupt v. Abram, ("The blood test procedure has become routine in our everyday life").The breath tests authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed by Subpart C. Unlike blood tests, breath tests do not require piercing the skin and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee's bloodstream and nothing more. Like the blood-testing procedures mandated by Subpart C, which can be used only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath tests reveal no other facts in which the employee has a substantial privacy interest. Cf. United States v. Jacobsen, 466 U.S., at 123; United States v. Place, 462 U.S., at 707. In all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns.A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive of the body and, under the regulations, may not be used as an occasion for inquiring into private facts unrelated to alcohol or drug use.7 We recognize, however, that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. See 50 Fed. Reg. 31555 (1985). See also Field Manual B-15, D-1. The sample is also collected in a medical environment, by personnel unrelated to the railroad employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. This relation between safety and employee fitness was recognized by Congress when it enacted the Hours of Service Act in 1907, Baltimore & Ohio R. Co. v. ICC, 221 U.S., at 619, and also when it authorized the Secretary to "test ... railroad facilities, equipment, rolling stock, operations, or persons, as he deems necessary to carry out the provisions" of the Federal Railroad Safety Act of 1970. 45 U.S.C. 437(a) (emphasis added). It has also been recognized by state governments,8 and has long been reflected in industry practice, as evidenced by the industry's promulgation and enforcement of Rule G. Indeed, the FRA found, and the Court of Appeals acknowledged, see 839 F.2d, at 585, that "most railroads require periodic physical examinations for train and engine employees and certain other employees." 49 Fed. Reg. 24278 (1984). See also Railway Labor Executives Assn. v. Norfolk & Western R. Co., 833 F.2d 700, 705-706 (CA7 1987); Brotherhood of Maintenance of Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F.2d 1016, 1024 (CA8 1986).We do not suggest, of course, that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal. Here, however, the covered employees have long been a principal focus of regulatory concern. As the dissenting judge below noted: "The reason is obvious. An idle locomotive, sitting in the round-house, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs." 839 F.2d, at 593. Though some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts, logic and history show that a diminished expectation of privacy attaches to information relating to the physical condition of covered employees and to this reasonable means of procuring such information. We conclude, therefore, that the testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable expectations of privacy of covered employees.By contrast, the Government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, see, e. g., Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (CA8 1988); Alverado v. Washington Public Power Supply System, 111 Wash. 2d 424, 436, 759 P.2d 427, 433-434 (1988), cert. pending, No. 88-645, employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee, the FRA found, will seldom display any outward "signs detectable by the lay person or, in many cases, even the physician." 50 Fed. Reg. 31526 (1985). This view finds ample support in the railroad industry's experience with Rule G, and in the judgment of the courts that have examined analogous testing schemes. See, e. g., Brotherhood of Maintenance Way Employees, Lodge 16 v. Burlington Northern R. Co., supra, at 1020. Indeed, while respondents posit that impaired employees might be detected without alcohol or drug testing,9 the premise of respondents' lawsuit is that even the occurrence of a major calamity will not give rise to a suspicion of impairment with respect to any particular employee.While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place. 50 Fed. Reg. 31541 (1985). The railroad industry's experience with Rule G persuasively shows, and common sense confirms, that the customary dismissal sanction that threatens employees who use drugs or alcohol while on duty cannot serve as an effective deterrent unless violators know that they are likely to be discovered. By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, cf. Griffin v. Wisconsin, 483 U.S., at 876, concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty.The testing procedures contemplated by Subpart C also help railroads obtain invaluable information about the causes of major accidents, see 50 Fed. Reg. 31541 (1985), and to take appropriate measures to safeguard the general public. Cf. Michigan v. Tyler, (noting that prompt investigation of the causes of a fire may uncover continuing dangers and thereby prevent the fire's recurrence); Michigan v. Clifford, (REHNQUIST, J., dissenting) (same). Positive test results would point toward drug or alcohol impairment on the part of members of the crew as a possible cause of an accident, and may help to establish whether a particular accident, otherwise not drug related, was made worse by the inability of impaired employees to respond appropriately. Negative test results would likewise furnish invaluable clues, for eliminating drug impairment as a potential cause or contributing factor would help establish the significance of equipment failure, inadequate training, or other potential causes, and suggest a more thorough examination of these alternatives. Tests performed following the rule violations specified in Subpart D likewise can provide valuable information respecting the causes of those transgressions, which the FRA found to involve "the potential for a serious train accident or grave personal injury, or both." 50 Fed. Reg. 31553 (1985). A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer's ability to obtain this information, despite its obvious importance. Experience confirms the FRA's judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident. While events following the rule violations that activate the testing authority of Subpart D may be less chaotic, objective indicia of impairment are absent in these instances as well. Indeed, any attempt to gather evidence relating to the possible impairment of particular employees likely would result in the loss or deterioration of the evidence furnished by the tests. Cf. Michigan v. Clifford, supra, at 293, n. 4 (plurality opinion); Michigan v. Tyler, supra, at 510. It would be unrealistic, and inimical to the Government's goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances.Without quarreling with the importance of these governmental interests, the Court of Appeals concluded that the postaccident testing regulations were unreasonable because "[b]lood and urine tests intended to establish drug use other than alcohol ... cannot measure current drug intoxication or degree of impairment." 839 F.2d, at 588. The court based its conclusion on its reading of certain academic journals that indicate that the testing of urine can disclose only drug metabolites, which "may remain in the body for days or weeks after the ingestion of the drug." Id., at 589. We find this analysis flawed for several reasons.As we emphasized in New Jersey v. T. L. O., "it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have `any tendency to make the existence of any fact that is of consequence to the determination [of the point in issue] more probable or less probable than it would be without the evidence.'" 469 U.S., at 345, quoting Fed. Rule Evid. 401. Even if urine test results disclosed nothing more specific than the recent use of controlled substances by a covered employee, this information would provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times. See Field Manual B-4. The record makes clear, for example, that a positive test result, coupled with known information concerning the pattern of elimination for the particular drug and information that may be gathered from other sources about the employee's activities, may allow the FRA to reach an informed judgment as to how a particular accident occurred. See supra, at 609-610.More importantly, the Court of Appeals overlooked the FRA's policy of placing principal reliance on the results of blood tests, which unquestionably can identify very recent drug use, see, e. g., 49 Fed. Reg. 24291 (1984), while relying on urine tests as a secondary source of information designed to guard against the possibility that certain drugs will be eliminated from the bloodstream before a blood sample can be obtained. The court also failed to recognize that the FRA regulations are designed not only to discern impairment but also to deter it. Because the record indicates that blood and urine tests, taken together, are highly effective means of ascertaining on-the-job impairment and of deterring the use of drugs by railroad employees, we believe the Court of Appeals erred in concluding that the postaccident testing regulations are not reasonably related to the Government objectives that support them.10 We conclude that the compelling Government interests served by the FRA's regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee. In view of our conclusion that, on the present record, the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees, the Government's compelling interests outweigh privacy concerns.IVThe possession of unlawful drugs is a criminal offense that the Government may punish, but it is a separate and far more dangerous wrong to perform certain sensitive tasks while under the influence of those substances. Performing those tasks while impaired by alcohol is, of course, equally dangerous, though consumption of alcohol is legal in most other contexts. The Government may take all necessary and reasonable regulatory steps to prevent or deter that hazardous conduct, and since the gravamen of the evil is performing certain functions while concealing the substance in the body, it may be necessary, as in the case before us, to examine the body or its fluids to accomplish the regulatory purpose. The necessity to perform that regulatory function with respect to railroad employees engaged in safety-sensitive tasks, and the reasonableness of the system for doing so, have been established in this case.Alcohol and drug tests conducted in reliance on the authority of Subpart D cannot be viewed as private action outside the reach of the Fourth Amendment. Because the testing procedures mandated or authorized by Subparts C and D effect searches of the person, they must meet the Fourth Amendment's reasonableness requirement. In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. We hold that the alcohol and drug tests contemplated by Subparts C and D of the FRA's regulations are reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly reversed. It is so ordered. |
6 | In collective bargaining negotiations, two unions demanded that the agreement require the employers to comply with union rules "not in conflict with" federal law and that foremen must be union members and do the hiring, but that they should be responsible only to the employers. Union insistence upon these demands led to a deadlock in the negotiations and a strike. The employers filed charges with the National Labor Relations Board, which found that (1) the demand for a contract including these requirements was a refusal to bargain within the meaning of 8 (b) (3) of the National Labor Relations Act, as amended, (2) striking to force acceptance of those requirements was an attempt to make the employers discriminate in favor of union members contrary to 8 (b) (2), and (3) striking for the "foreman clause" was restraining and coercing the employers in the selection of their representatives for the adjustment of grievances in violation of 8 (b) (1) (B). Held: 1. The proposed requirement that employers comply with union rules "not in conflict with" federal law was not unlawful per se. Labor Board v. News Syndicate Co., ante, p. 695. P. 707. 2. As to whether the strike to obtain the "foreman clause" was permissible, the Court is equally divided; and the judgment of the Court of Appeals enforcing the Board's order on that phase of the controversy is affirmed. P. 707. 278 F.2d 6, affirmed in part and reversed in part.Gerhard P. Van Arkel argued the cause for petitioners. With him on the briefs were Henry Kaiser and David I. Shapiro.Dominick L. Manoli argued the cause for respondent. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Stuart Rothman and Norton J. Come.Elisha Hanson, Arthur B. Hanson and Emmett E. Tucker, Jr. filed a brief for the Worcester Telegram Publishing Co., Inc., as amicus curiae, urging affirmance.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case involves a controversy that started in 1956 between petitioner Local 165 and the Worcester Telegram and between petitioner Local 38 and the Haverhill Gazette. The two unions insisted that the collective bargaining agreements that were being negotiated contain clauses or provisions to which each employer objected. The controversy as it reaches here is reduced to two clauses: first, that the hiring for the composing room be in the hands of the foreman; that he must be a member of the union; but that the union "shall not discipline the foreman for carrying out written instructions of the publisher or his representatives authorized by this Agreement"; and second, that the General Laws of the International Typographical Union shall govern the relations between the parties if they are "not in conflict with state or federal law." The unions' demand that these clauses be included in the agreement led to a deadlock in the negotiations which in turn resulted in a strike.The employers filed charges with the Board, complaints were issued, the cases consolidated, and hearings held. The Board concluded that the demands for the two clauses and the strikes supporting them were violations of the Act. It found that a demand for a contract that included those clauses was a refusal to bargain collectively within the meaning of 8 (b) (3) of the National Labor Relations Act, as amended by the Taft-Hartley Act, 61 Stat. 136, 140-141, 29 U.S.C. 158 (b) (3). It found that striking to force acceptance of those clauses was an attempt to make the employers discriminate in favor of union members contrary to the command of 8 (b) (2) of the Act. It also found that striking for the "foreman clause" was restraining and coercing the employers in the selection of their representatives for the adjustment of grievances in violation of 8 (b) (1) (B) of the Act. 123 N. L. R. B. 806. The Court of Appeals enforced the Board's order apart from features not material here. 278 F.2d 6. The case is here on certiorari, .What we have said in Labor Board v. News Syndicate Co., decided this day, ante, p. 695, is dispositive of the clause which incorporates the General Laws of the parent union "not in conflict with state or federal law." On that phase of the case the judgment below must be reversed.MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER dissent, substantially for the reasons stated by the Court of Appeals, 278 F.2d 6.We turn then to the controversy over the "foreman clause." As to whether the strike to obtain the "foreman clause" was permissible, the Court is equally divided. Accordingly the judgment on that phase of the controversy is affirmed. Reversed in part and affirmed in part.MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case.MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, concurring.I join the Court's opinion upon the basis set forth in my concurring opinions in No. 339, ante, p. 703, and in Nos. 64 and 85, ante, p. 677. |
0 | Respondent Wright was charged under Idaho law with two counts of lewd conduct with a minor, specifically her 5 1/2- and 2 1/2-year-old daughters. At the trial, it was agreed that the younger daughter was not "capable of communicating to the jury." However, the court admitted, under Idaho's residual hearsay exception, certain statements she had made to a pediatrician having extensive experience in child abuse cases. The doctor testified that she had reluctantly answered questions about her own abuse, but had spontaneously volunteered information about her sister's abuse. Wright was convicted on both counts, but appealed only from the conviction involving the younger child. The State Supreme Court reversed, finding that the admission of the doctor's testimony under the residual hearsay exception violated Wright's rights under the Confrontation Clause. The court noted that the child's statements did not fall within a traditional hearsay exception and lacked "particularized guarantees of trustworthiness" because the doctor had conducted the interview without procedural safeguards: he failed to videotape the interview, asked leading questions, and had a preconceived idea of what the child should be disclosing. This error, the court found, was not harmless beyond a reasonable doubt.Held: The admission of the child's hearsay statements violated Wright's Confrontation Clause rights. Pp. 813-827. (a) Incriminating statements admissible under an exception to the hearsay rule are not admissible under the Confrontation Clause unless the prosecution produces, or demonstrates the unavailability of, the declarant whose statement it wishes to use and unless the statement bears adequate indicia of reliability. The reliability requirement can be met where the statement either falls within a firmly rooted hearsay exception or is supported by a showing of "particularized guarantees of trustworthiness." Ohio v. Roberts, . Although it is presumed here that the child was unavailable within the meaning of the Clause, the evidence will be barred unless the reliability requirement is met. Pp. 813-817. (b) Idaho's residual hearsay exception is not a firmly rooted hearsay exception for Confrontation Clause purposes. It accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might be sufficiently reliable to be admissible at trial, and thus does not share the same tradition of reliability supporting the admissibility of statements under a firmly rooted hearsay exception. To rule otherwise would require that virtually all codified hearsay exceptions be found to assume constitutional stature, something which this Court has declined to do. California v. Green, . Pp. 817-818. (c) In determining that "particularized guarantees of trustworthiness" were not shown, the State Supreme Court erred in placing dispositive weight on the lack of procedural safeguards at the interview, since such safeguards may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for Confrontation Clause purposes. Rather, such trustworthiness guarantees must be shown from the totality of those circumstances that surround the making of the statement and render the declarant particularly worthy of belief. As is the case with statements admitted under a firmly rooted hearsay exception, see e.g., Green, supra, at 161, evidence possessing "particularized guarantees of trustworthiness" must be so trustworthy that adversarial testing would add little to its reliability. In child abuse cases, factors used to determine trustworthiness guarantees - such as the declarant's mental state and the use of terminology unexpected of a child of similar age - must relate to whether the child was particularly likely to be telling the truth when the statement was made. The State's contention that evidence corroborating a hearsay statement may properly support a finding that the statement bears such trustworthiness guarantees is rejected, since this would permit admission of presumptively unreliable statements, such as those made under duress, by bootstrapping on the trustworthiness of other evidence at trial. That result is at odds with the requirement that hearsay evidence admitted under the Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. Also rejected is Wright's contention that the child's statements are per se or presumptively unreliable on the ground that the trial court found the child incompetent to testify at trial. The court found only that she was not capable of communicating to the jury, and implicitly found that, at the time she made the statements, she was capable of receiving just impressions of the facts and of relating them truly. Moreover, the Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial. See, e. g., Mattox v. United States, . Pp. 818-825. (d) In admitting the evidence, the trial court identified only two factors - whether the child had a motive to make up her story and whether, given her age, the statements were of the type that one would expect a child to fabricate - relating to circumstances surrounding the making of the statements. The State Supreme Court properly focused on the presumptive unreliability of the out-of-court statements and on the suggestive manner in which the doctor conducted his interview. Viewing the totality of the circumstances, there is no special reason for supposing that the incriminating statements about the child's own abuse were particularly trustworthy. Her statement about her sister presents a closer question. Although its spontaneity and the change in her demeanor suggest that she may have been telling the truth, spontaneity may be an inaccurate indicator of trustworthiness where there has been prior interrogation, prompting, or manipulation by adults. Moreover, the statement was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Because the State does not challenge the State Supreme Court's determination that the Confrontation Clause error was not harmless beyond a reasonable doubt, this Court will not revisit the issue. Pp. 825-827. 116 Idaho 382, 775 P.2d 1224, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, STEVENS, and SCALIA, JJ. joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined, post, p. 827.James T. Jones, Attorney General of Idaho, argued the cause for petitioner. With him on the briefs were John J. McMahon, Chief Deputy Attorney General, and Myrna A. I. Stahman, Deputy Attorney General.Deputy Solicitor General Bryson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, and Michael R. Dreeben.Rolf Michael Kehne, by appointment of the Court, , argued the cause and filed a brief for respondent.* [Footnote *] A brief of amici curiae urging reversal was filed for the Commonwealth of Pennsylvania et al. by Ernest D. Preate, Jr., Attorney General of Pennsylvania, and Marylou Barton, Chief Deputy Attorney General, Douglas B. Baily, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Steve Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Tom Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Joseph Curran, Jr., Attorney General of Maryland, James M. Shannon, Attorney General of Massachusetts, Frank J. Kelly, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert Del Tufo, Attorney General Designate of New Jersey, Hal Stratton, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas Spaeth, Attorney General of North Dakota, Robert H. Henry, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Godfrey R. de Castro, Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, and Joseph B. Meyer, Attorney General of Wyoming.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Margaret A. Berger and Steven R. Sharpiro; and for the National Association of Criminal Defense Lawyers by Natman Schaye.Stephan E. Lawton, John E. B. Myers, Kirk B. Johnson, and Thomas R. Finn filed a brief for the American Professional Society on the Abuse of Children et al. as amicus curiae. JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant's rights under the Confrontation Clause of the Sixth Amendment.IRespondent Laura Lee Wright was jointly charged with Robert L. Giles of two counts of lewd conduct with a minor under 16, in violation of Idaho Code 18-1508 (1987). The alleged victims were respondent's two daughters, one of whom was 5 1/2 and the other 2 1/2 years old at the time the crimes were charged. Respondent and her ex-husband, Louis Wright, the father of the older daughter, had reached an informal agreement whereby each parent would have custody of the older daughter for six consecutive months. The allegations surfaced in November, 1986, when the older daughter told Cynthia Goodman, Louis Wright's female companion, that Giles had had sexual intercourse with her while respondent held her down and covered her mouth, App. 47-55; 3 Tr. 456-460, and that she had seen respondent and Giles do the same thing to respondent's younger daughter, App. 48-49, 61; 3 Tr. 460. The younger daughter was living with her parents - respondent and Giles - at the time of the alleged offenses.Goodman reported the older daughter's disclosures to the police the next day, and took the older daughter to the hospital. A medical examination of the older daughter revealed evidence of sexual abuse. One of the examining physicians was Dr. John Jambura, a pediatrician with extensive experience in child abuse cases. App. 91-94. Police and welfare officials took the younger daughter into custody that day for protection and investigation. Dr. Jambura examined her the following day and found conditions "strongly suggestive of sexual abuse with vaginal contact," occurring approximately two to three days prior to the examination. Id., at 105, 106.At the joint trial of respondent and Giles, the trial court conducted a voir dire examination of the younger daughter, who was three years old at the time of trial, to determine whether she was capable of testifying. Id., at 32-38. The court concluded, and the parties agreed, that the younger daughter was "not capable of communicating to the jury." Id., at 39.At issue in this case is the admission at trial of certain statements made by the younger daughter to Dr. Jambura in response to questions he asked regarding the alleged abuse. Over objection by respondent and Giles, the trial court permitted Dr. Jambura to testify before the jury as follows: "Q. [By the prosecutor] Now, calling your attention then to your examination of Kathy Wright on November 10th. What - would you describe any interview dialogue that you had with Kathy at that time? Excuse me, before you get into that, would you lay a setting of where this took place and who else might have been present? "A. This took place in my office, in my examining room, and, as I recall, I believe previous testimony I said that I recall a female attendant being present, I don't recall her identity. "I started out with basically, `Hi, how are you,' you know, `What did you have for breakfast this morning?' Essentially a few minutes of just sort of chitchat. "Q. Was there response from Kathy to that first - those first questions? "A. There was. She started to carry on a very relaxed animated conversation. I then proceeded to just gently start asking questions about, `Well, how are things at home,' you know, those sorts. Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, `Do you play with daddy? Does daddy play with you? Does daddy touch you with his pee-pee? Do you touch his pee-pee?' And again, we then established what was meant by pee-pee, it was a generic term for genital area. "Q. Before you get into that, what was, as best you recollect, what was her response to the question `Do you play with daddy?' "A. Yes, we play - I remember her making a comment about yes we play a lot, and expanding on that and talking about spending time with daddy. "Q. And `Does daddy play with you?' Was there any response? "A. She responded to that as well, that they played together in a variety of circumstances and, you know, seemed very unaffected by the question. "Q. And then what did you say and her response? "A. When I asked her `Does daddy touch you with his pee-pee,' she did admit to that. When I asked, `do you touch his pee-pee,' she did not have any response. "Q. Excuse me. Did you notice any change in her affect or attitude in that line of questioning? "A. Yes. "Q. What did you observe? "A. She would not - oh, she did not talk any further about that. She would not elucidate what exactly - what kind of touching was taking place, or how it was happening. She did, however, say that daddy does do this with me, but he does it a lot more with my sister than with me. "Q. And how did she offer that last statement? Was that in response to a question or was that just a volunteered statement? "A. That was a volunteered statement as I sat and waited for her to respond, again after she sort of clammed-up, and that was the next statement that she made after just allowing some silence to occur." Id., at 121-123. On cross-examination, Dr. Jambura acknowledged that a picture that he drew during his questioning of the younger daughter had been discarded. Id., at 124. Dr. Jambura also stated that although he had dictated notes to summarize the conversation, his notes were not detailed, and did not record any changes in the child's affect or attitude. Id., at 123-124.The trial court admitted these statements under Idaho's residual hearsay exception, which provides in relevant part: "Rule 803. Hearsay exceptions; availability of declarant immaterial. - The following are not excluded by the hearsay rule, even though the declarant is available as a witness.... . . "(24) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence." Idaho Rule Evid. 803(24). Respondent and Giles were each convicted of two counts of lewd conduct with a minor under 16 and sentenced to 20 years imprisonment. Each appealed only from the conviction involving the younger daughter. Giles contended that the trial court erred in admitting Dr. Jambura's testimony under Idaho's residual hearsay exception. The Idaho Supreme Court disagreed and affirmed his conviction. State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989). Respondent asserted that the admission of Dr. Jambura's testimony under the residual hearsay exception nevertheless violated her rights under the Confrontation Clause. The Idaho Supreme Court agreed and reversed respondent's conviction. 116 Idaho 382, 775 P.2d 1224 (1989).The Supreme Court of Idaho held that the admission of the inculpatory hearsay testimony violated respondent's federal constitutional right to confrontation because the testimony did not fall within a traditional hearsay exception and was based on an interview that lacked procedural safeguards. Id., at 385, 775 P.2d, at 1227. The court found Dr. Jambura's interview technique inadequate because "the questions and answers were not recorded on videotape for preservation and perusal by the defense at or before trial; and, blatantly leading questions were used in the interrogation." Ibid. The statements also lacked trustworthiness, according to the court, because "this interrogation was performed by someone with a preconceived idea of what the child should be disclosing." Ibid. Noting that expert testimony and child psychology texts indicated that children are susceptible to suggestion and are therefore likely to be misled by leading questions, the court found that "[t]he circumstances surrounding this interview demonstrate dangers of unreliability which, because the interview was not [audio or video] recorded, can never be fully assessed." Id., at 388, 775 P.2d, at 1230. The court concluded that the younger daughter's statements lacked the particularized guarantees of trustworthiness necessary to satisfy the requirements of the Confrontation Clause, and that therefore the trial court erred in admitting them. Id., at 389, 775 P.2d, at 1231. Because the court was not convinced, beyond a reasonable doubt, that the jury would have reached the same result had the error not occurred, the court reversed respondent's conviction on the count involving the younger daughter and remanded for a new trial. Ibid.We granted certiorari, , and now affirm.IIThe Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him."From the earliest days of our Confrontation Clause jurisprudence, we have consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause. See, e.g., Mattox v. United States, ; Pointer v. Texas, . We reaffirmed only recently that "[w]hile a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as "unintended and too extreme." Bourjaily v. United States, (quoting Ohio v. Roberts, ); see also Maryland v. Craig, post, at 847 ("[T]he [Confrontation] Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial").Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause's prohibitions with the general rule prohibiting the admission of hearsay statements. See California v. Green, ; Dutton v. Evans, (plurality opinion); United States v. Inadi, , n. 5 (1986). The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. See, e.g., Green, supra, at 155-156; Bruton v. United States, ; Barber v. Page, ; Pointer, supra.In Ohio v. Roberts, we set forth "a general approach" for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. 448 U.S., at 65. We noted that the Confrontation Clause "operates in two separate ways to restrict the range of admissible hearsay." Ibid. "First, in conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Ibid. (citations omitted). Second, once a witness is shown to be unavailable, "his statement is admissible only if it bears adequate `indicia of reliability.' Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id., at 66 (footnote omitted); see also Mancusi v. Stubbs, .Applying this general analytical framework to the facts of Roberts, supra, we held that the admission of testimony given at a preliminary hearing, where the declarant failed to appear at trial despite the State's having issued five separate subpoenas to her, did not violate the Confrontation Clause. 448 U.S., at 67-77. Specifically, we found that the State had carried its burden of showing that the declarant was unavailable to testify at trial, see Barber, supra, at 724-725; Mancusi, supra, at 212, and that the testimony at the preliminary hearing bore sufficient indicia of reliability, particularly because defense counsel had had an adequate opportunity to cross-examine the declarant at the preliminary hearing, see Mancusi, supra, at 216.We have applied the general approach articulated in Roberts to subsequent cases raising Confrontation Clause and hearsay issues. In United States v. Inadi, supra, we held that the general requirement of unavailability did not apply to incriminating out-of-court statements made by a non-testifying co-conspirator, and that therefore the Confrontation Clause did not prohibit the admission of such statements, even though the government had not shown that the declarant was unavailable to testify at trial. 475 U.S., at 394-400. In Bourjaily v. United States, supra, we held that such statements also carried with them sufficient "indicia of reliability" because the hearsay exception for co-conspirator statements was a firmly rooted one. 483 U.S., at 182-184.Applying the Roberts approach to this case, we first note that this case does not raise the question whether, before a child's out-of-court statements are admitted, the Confrontation Clause requires the prosecution to show that a child witness is unavailable at trial - and, if so, what that showing requires. The trial court in this case found that respondent's younger daughter was incapable of communicating with the jury, and defense counsel agreed. App. 39. The court below neither questioned this finding, nor discussed the general requirement of unavailability. For purposes of deciding this case, we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause.The crux of the question presented is therefore whether the State, as the proponent of evidence presumptively barred by the hearsay rule and the Confrontation Clause, has carried its burden of proving that the younger daughter's incriminating statements to Dr. Jambura bore sufficient indicia of reliability to withstand scrutiny under the Clause. The court below held that, although the trial court had properly admitted the statements under the State's residual hearsay exception, the statements were "fraught with the dangers of unreliability which the Confrontation Clause is designed to highlight and obviate." 116 Idaho, at 389, 775 P.2d, at 1231. The State asserts that the court below erected too stringent a standard for admitting the statements, and that the statements were, under the totality of the circumstances, sufficiently reliable for Confrontation Clause purposes.In Roberts, we suggested that the "indicia of reliability" requirement could be met in either of two circumstances: where the hearsay statement "falls within a firmly rooted hearsay exception," or where it is supported by "a showing of particularized guarantees of trustworthiness." 448 U.S., at 66; see also Bourjaily, supra, at 183 ("[T]he co-conspirator exception to the hearsay rule is firmly enough rooted in our jurisprudence that, under this Court's holding in Roberts, a court need not independently inquire into the reliability of such statements"); Lee v. Illinois, ("[E]ven if certain hearsay evidence does not fall within `a firmly rooted hearsay exception,' and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a `showing of particularized guarantees of trustworthiness'") (footnote and citation omitted).We note at the outset that Idaho's residual hearsay exception, Idaho Rule Evid. 803(24), under which the challenged statements were admitted, App. 113-115, is not a firmly rooted hearsay exception for Confrontation Clause purposes. Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements. See Mattox, 156 U.S., at 243; Roberts, 448 U.S., at 66; Bourjaily, 483 U.S., at 183; see also Lee, supra, at 552 (BLACKMUN, J., dissenting) ("[S]tatements squarely within established hearsay exceptions possess `the imprimatur of judicial and legislative experience,' ... and that fact must weigh heavily in our assessment of their reliability for constitutional purposes") (citation omitted). The residual hearsay exception, by contrast, accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial. See, e.g., Senate Judiciary Committee's Note on Fed.Rule Evid. 803(24), 28 U.S.C. App., pp. 786-787; E. Cleary, McCormick on Evidence 324.1, pp. 907-909 (3d ed. 1984). Hearsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Moreover, were we to agree that the admission of hearsay statements under the residual exception automatically passed Confrontation Clause scrutiny, virtually every codified hearsay exception would assume constitutional stature, a step this Court has repeatedly declined to take. See Green, 399 U.S., at 155-156; Evans, 400 U.S., at 86-87 (plurality opinion); Inadi, 475 U.S., at 393, n. 5; see also Evans, supra, at 94-95 (Harlan, J., concurring in result).The State, in any event, does not press the matter strongly, and recognizes that, because the younger daughter's hearsay statements do not fall within a firmly rooted hearsay exception, they are "presumptively unreliable and inadmissible for Confrontation Clause purposes," Lee, supra, at 543, and "must be excluded, at least absent a showing of particularized guarantees of trustworthiness," Roberts, supra, at 66. The court below concluded that the State had not made such a showing, in large measure because the statements resulted from an interview lacking certain procedural safeguards. The court below specifically noted that Dr. Jambura failed to record the interview on videotape, asked leading questions, and questioned the child with a preconceived idea of what she should be disclosing. See 116 Idaho, at 388, 775 P.2d, at 1230.Although we agree with the court below that the Confrontation Clause bars the admission of the younger daughter's hearsay statements, we reject the apparently dispositive weight placed by that court on the lack of procedural safeguards at the interview. Out-of-court statements made by children regarding sexual abuse arise in a wide variety of circumstances, and we do not believe the Constitution imposes a fixed set of procedural prerequisites to the admission of such statements at trial. The procedural requirements identified by the court below, to the extent regarded as conditions precedent to the admission of child hearsay statements in child sexual abuse cases, may in many instances be inappropriate or unnecessary to a determination whether a given statement is sufficiently trustworthy for Confrontation Clause purposes. See, e.g., Nelson v. Farrey, 874 F.2d 1222, 1229 (CA7 1989) (videotape requirement not feasible, especially where defendant had not yet been criminally charged), cert. denied, ; J. Myers, Child Witness Law and Practice 4.6, pp. 129-134 (1987) (use of leading questions with children, when appropriate, does not necessarily render responses untrustworthy). Although the procedural guidelines propounded by the court below may well enhance the reliability of out-of-court statements of children regarding sexual abuse, we decline to read into the Confrontation Clause a preconceived and artificial litmus test for the procedural propriety of professional interviews in which children make hearsay statements against a defendant.The State responds that a finding of "particularized guarantees of trustworthiness" should instead be based on a consideration of the totality of the circumstances, including not only the circumstances surrounding the making of the statement but also other evidence at trial that corroborates the truth of the statement. We agree that "particularized guarantees of trustworthiness" must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief. This conclusion derives from the rationale for permitting exceptions to the general rule against hearsay: "The theory of the hearsay rule ... is that the many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination. But this test or security may in a given instance be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness so that the test of cross-examination would be a work of supererogation." 5 J. Wigmore, Evidence 1420, p. 251 (J. Chadbourne rev. 1974). In other words, if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial. The basis for the "excited utterance" exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous. See, e.g., 6 Wigmore, supra, 1745-1764; 4 J. Weinstein & M. Berger, Weinstein's Evidence § 803(2)01. (1988); Advisory Committee's Note on Fed.Rule Evid. 803(2), 28 U.S.C. App., p. 778. Likewise, the "dying declaration" and "medical treatment" exceptions to the hearsay rule are based on the belief that persons making such statements are highly unlikely to lie. See, e.g., Mattox, 156 U.S., at 244 ("[T]he sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of oath"); Queen v. Osman, 15 Cox Crim.Cas. 1, 3 (Eng.N. Wales Cir. 1881) (Lush, L.J.) ("[N]o person, who is immediately going into the presence of his Maker will do so with a lie upon his lips"); Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257 (1989). "The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made, and do not include those that may be added by using hindsight." Huff v. White Motor Corp., 609 F.2d 286, 292 (CA7 1979). We think the "particularized guarantees of trustworthiness" required for admission under the Confrontation Clause must likewise be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. Our precedents have recognized that statements admitted under a "firmly rooted" hearsay exception are so trustworthy that adversarial testing would add little to their reliability. See Green, 399 U.S., at 161 (examining "whether subsequent cross-examination at the defendant's trial will still afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement"); see also Mattox, supra, at 244; Evans, 400 U.S., at 88-89 (plurality opinion); Roberts, 448 U.S., at 65, 73. Because evidence possessing "particularized guarantees of trustworthiness" must be at least as reliable as evidence admitted under a firmly rooted hearsay exception, see Roberts, supra, at 66, we think that evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reliability. See Lee v. Illinois, 476 U.S., at 544 (determining indicia of reliability from the circumstances surrounding the making of the statement); see also State v. Ryan, 103 Wash.2d 165, 174, 691 P.2d 197, 204 (1984) ("Adequate indicia of reliability [under Roberts] must be found in reference to circumstances surrounding the making of the out-of-court statement, and not from subsequent corroboration of the criminal act"). Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.The state and federal courts have identified a number of factors that we think properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable. See, e.g., State v. Robinson, 153 Ariz. 191, 201, 735 P.2d 801, 811 (1987) (spontaneity and consistent repetition); Morgan v. Foretich, 846 F.2d 941, 948 (CA4 1988) (mental state of the declarant); State v. Sorenson, 143 Wis.2d 226, 246, 421 N.W.2d 77, 85 (1988) (use of terminology unexpected of a child of similar age); State v. Kuone, 243 Kan. 218, 221-222, 757 P.2d 289, 292-293 (1988) (lack of motive to fabricate). Although these cases (which we cite for the factors they discuss and not necessarily to approve the results that they reach) involve the application of various hearsay exceptions to statements of child declarants, we think the factors identified also apply to whether such statements bear "particularized guarantees of trustworthiness" under the Confrontation Clause. These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining "particularized guarantees of trustworthiness" under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.As our discussion above suggests, we are unpersuaded by the State's contention that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears "particularized guarantees of trustworthiness." To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial. Cf. Delaware v. Van Arsdall, . "[T]he Clause countenances only hearsay marked with such trustworthiness that "there is no material departure from the reason of the general rule." Roberts, supra, at 65 (quoting Snyder v. Massachusetts, ). A statement made under duress, for example, may happen to be a true statement, but the circumstances under which it is made may provide no basis for supposing that the declarant is particularly likely to be telling the truth - indeed, the circumstances may even be such that the declarant is particularly unlikely to be telling the truth. In such a case, cross-examination at trial would be highly useful to probe the declarant's state-of-mind when he made the statements; the presence of evidence tending to corroborate the truth of the statement would be no substitute for cross-examination of the declarant at trial.In short, the use of corroborating evidence to support a hearsay statement's "particularized guarantees of trustworthiness" would permit admission of a presumptively unreliable statement by bootstrapping on the trustworthiness of other evidence at trial, a result we think at odds with the requirement that hearsay evidence admitted under the Confrontation Clause be so trustworthy that cross-examination of the declarant would be of marginal utility. Indeed, although a plurality of the Court in Dutton v. Evans looked to corroborating evidence as one of four factors in determining whether a particular hearsay statement possessed sufficient indicia of reliability, see 400 U.S., at 88, we think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless*, rather than that any basis exists for presuming the declarant to be trustworthy. See id., at 90 (BLACKMUN, J., joined by Burger, C.J., concurring) (finding admission of the statement at issue to be harmless error, if error at all); see also 4 D. Louisell & C. Mueller, Federal Evidence 418, p. 143 (1980) (discussing Evans). Moreover, although we considered in Lee v. Illinois the "interlocking" nature of a codefendant's and a defendant's confessions to determine whether the codefendant's confession was sufficiently trustworthy for confrontation purposes, we declined to rely on corroborative physical evidence and indeed rejected the "interlock" theory in that case. 476 U.S., at 545-546. We cautioned that "[t]he true danger inherent in this type of hearsay is, in fact, its selective reliability." Id., at 545. This concern applies in the child hearsay context as well: Corroboration of a child's allegations of sexual abuse by medical evidence of abuse, for example, sheds no light on the reliability of the child's allegations regarding the identity of the abuser. There is a very real danger that a jury will rely on partial corroboration to mistakenly infer the trustworthiness of the entire statement. Furthermore, we recognized the similarity between harmless-error analysis and the corroboration inquiry when we noted in Lee that the harm of "admission of the [hearsay] statement [was that it] poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment." Ibid. (emphasis added).Finally, we reject respondent's contention that the younger daughter's out-of-court statements in this case are per se unreliable, or at least presumptively unreliable, on the ground that the trial court found the younger daughter incompetent to testify at trial. First, respondent's contention rests upon a questionable reading of the record in this case. The trial court found only that the younger daughter was "not capable of communicating to the jury." App. 39. Although Idaho law provides that a child witness may not testify if he "appear[s] incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly," Idaho Code 9-202 (Supp. 1989); Idaho Rule Evid. 601(a), the trial court in this case made no such findings. Indeed, the more reasonable inference is that, by ruling that the statements were admissible under Idaho's residual hearsay exception, the trial court implicitly found that the younger daughter, at the time she made the statements, was capable of receiving just impressions of the facts and of relating them truly. See App. 115. In addition, we have in any event held that the Confrontation Clause does not erect a per se rule barring the admission of prior statements of a declarant who is unable to communicate to the jury at the time of trial. See, e.g., Mattox, 156 U.S., at 243-244; see also 4 Louisell & Mueller, supra, 486, pp. 1041-1045. Although such inability might be relevant to whether the earlier hearsay statement possessed particularized guarantees of trustworthiness, a per se rule of exclusion would not only frustrate the truth-seeking purpose of the Confrontation Clause, but would also hinder States in their own "enlightened development in the law of evidence," Evans, 400 U.S., at 95 (Harlan, J., concurring in result).IIIThe trial court in this case, in ruling that the Confrontation Clause did not prohibit admission of the younger daughter's hearsay statements, relied on the following factors: "In this case, of course, there is physical evidence to corroborate that sexual abuse occurred. It would also seem to be the case that there is no motive to make up a story of this nature in a child of these years. We're not talking about a pubescent youth who may fantasize. The nature of the statements themselves as to sexual abuse are such that they fall outside the general believability that a child could make them up or would make them up. This is simply not the type of statement, I believe, that one would expect a child to fabricate. "We come then to the identification itself. Are there any indicia of reliability as to identification? From the doctor's testimony, it appears that the injuries testified to occurred at the time that the victim was in the custody of the Defendants. The [older daughter] has testified as to identification of [the] perpetrators. Those - the identification of the perpetrators in this case are persons well known to the [younger daughter]. This is not a case in which a child is called upon to identify a stranger or a person with whom they would have no knowledge of their identity or ability to recollect and recall. Those factors are sufficient indicia of reliability to permit the admission of the statements." App. 115. Of the factors the trial court found relevant, only two relate to circumstances surrounding the making of the statements: whether the child had a motive to "make up a story of this nature" and whether, given the child's age, the statements are of the type "that one would expect a child to fabricate." Ibid. The other factors on which the trial court relied, however, such as the presence of physical evidence of abuse, the opportunity of respondent to commit the offense, and the older daughter's corroborating identification, relate instead to whether other evidence existed to corroborate the truth of the statement. These factors, as we have discussed, are irrelevant to a showing of the "particularized guarantees of trustworthiness" necessary for admission of hearsay statements under the Confrontation Clause.We think the Supreme Court of Idaho properly focused on the presumptive unreliability of the out-of-court statements and on the suggestive manner in which Dr. Jambura conducted the interview. Viewing the totality of the circumstances surrounding the younger daughter's responses to Dr. Jambura's questions, we find no special reason for supposing that the incriminating statements were particularly trustworthy. The younger daughter's last statement regarding the abuse of the older daughter, however, presents a closer question. According to Dr. Jambura, the younger daughter "volunteered" that statement "after she sort of clammed-up." Id., at 123. Although the spontaneity of the statement and the change in demeanor suggest that the younger daughter was telling the truth when she made the statement, we note that it is possible that, "[i]f there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness." Robinson, 153 Ariz., at 201, 735 P.2d, at 811. Moreover, the statement was not made under circumstances of reliability comparable to those required, for example, for the admission of excited utterances or statements made for purposes of medical diagnosis or treatment. Given the presumption of inadmissibility accorded accusatory hearsay statements not admitted pursuant to a firmly rooted hearsay exception, Lee, 476 U.S., at 543, we agree with the court below that the State has failed to show that the younger daughter's incriminating statements to the pediatrician possessed sufficient "particularized guarantees of trustworthiness" under the Confrontation Clause to overcome that presumption.The State does not challenge the Idaho Supreme Court's conclusion that the Confrontation Clause error in this case was not harmless beyond a reasonable doubt, and we see no reason to revisit the issue. We therefore agree with that court that respondent's conviction involving the younger daughter must be reversed and the case remanded for further proceedings. Accordingly, the judgment of the Supreme Court of Idaho is affirmed. It is so ordered.[Footnote *] The dissent suggests that the Court unequivocally rejected this view in Cruz v. New York, , but the quoted language on which the dissent relies, post at 832, is taken out of context. Cruz involved the admission at a joint trial of a nontestifying codefendant's confession that incriminated the defendant. where the jury was instructed to consider that confession only against the codefendant, and where the defendant's own confession, corroborating that of his codefendant, was introduced against him. The Court in Cruz, relying squarely on Bruton v. United States, , held that the admission of the codefendant's confession violated the Confrontation Clause. 481 U.S., at 193. The language on which the dissent relies appears in a paragraph discussing whether the "interlocking" nature of the confessions was relevant to the applicability of Bruton (the Court concluded that it was not). The Court in that case said nothing about whether the codefendant's confession would be admissible against the defendant simply because it may have "interlocked" with the defendant's confession.JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE WHITE and JUSTICE BLACKMUN join, dissenting.The issue is whether the Sixth Amendment right of confrontation is violated when statements from a child who is unavailable to testify at trial are admitted under a hearsay exception against a defendant who stands accused of abusing her. The Court today holds that it is not, provided that the child's statements bear "particularized guarantees of trustworthiness." Ohio v. Roberts, . I agree. My disagreement is with the rule the Court invents to control this inquiry, and with the Court's ultimate determination that the statements in question here must be inadmissible as violative of the Confrontation Clause. Given the principle, for cases involving hearsay statements that do not come within one of the traditional hearsay exceptions, that admissibility depends upon finding particular guarantees of trustworthiness in each case, it is difficult to state rules of general application. I believe the Court recognizes this. The majority errs, in my view, by adopting a rule that corroboration of the statement by other evidence is an impermissible part of the trustworthiness inquiry. The Court's apparent ruling is that corroborating evidence may not be considered in whole or in part for this purpose.1 This limitation, at least on a facial interpretation of the Court's analytic categories, is a new creation by the Court; it likely will prove unworkable, and does not even square with the examples of reliability indicators the Court itself invokes; and it is contrary to our own precedents.I see no constitutional justification for this decision to prescind corroborating evidence from consideration of the question whether a child's statements are reliable. It is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. In the context of child abuse, for example, if part of the child's hearsay statement is that the assailant tied her wrists or had a scar on his lower abdomen, and there is physical evidence or testimony to corroborate the child's statement, evidence which the child could not have fabricated, we are more likely to believe that what the child says is true. Conversely, one can imagine a situation in which a child makes a statement which is spontaneous or is otherwise made under circumstances indicating that it is reliable, but which also contains undisputed factual inaccuracies so great that the credibility of the child's statements is substantially undermined. Under the Court's analysis, the statement would satisfy the requirements of the Confrontation Clause despite substantial doubt about its reliability. Nothing in the law of evidence or the law of the Confrontation Clause countenances such a result; on the contrary, most federal courts have looked to the existence of corroborating evidence or the lack thereof to determine the reliability of hearsay statements not coming within one of the traditional hearsay exceptions. See 4 D. Louisell & C. Mueller, Federal Evidence 472, p. 929 (1980) (collecting cases); 4 J. Weinstein & M. Berger, Weinstein's Evidence § 804(b)(5)01. (1988) (same). Specifically with reference to hearsay statements by children, a review of the cases has led a leading commentator on child witness law to conclude flatly: "If the content of an out-of-court statement is supported or corroborated by other evidence, the reliability of the hearsay is strengthened." J. Myers, Child Witness Law and Practice 5.37, p. 364 (1987).2 The Court's apparent misgivings about the weight to be given corroborating evidence, see ante at 824, may or may not be correct, but those misgivings do not justify wholesale elimination of this evidence from consideration in derogation of an overwhelming judicial and legislative consensus to the contrary. States are of course free, as a matter of state law, to demand corroboration of an unavailable child declarant's statements as well as other indicia of reliability before allowing the statements to be admitted into evidence. Until today, however, no similar distinction could be found in our precedents interpreting the Confrontation Clause. If anything, the many state statutes requiring corroboration of a child declarant's statements emphasize the relevance, not the irrelevance, of corroborating evidence to the determination whether an unavailable child witness's statements bear particularized guarantees of trustworthiness, which is the ultimate inquiry under the Confrontation Clause. In sum, whatever doubt the Court has with the weight to be given the corroborating evidence found in this case is no justification for rejecting the considered wisdom of virtually the entire legal community that corroborating evidence is relevant to reliability and trustworthiness.Far from rejecting this common-sense proposition, the very cases relied upon by the Court today embrace it. In Lee v. Illinois, , we considered whether the confession of a codefendant that "interlocked" with a defendant's own confession bore particularized guarantees of trustworthiness so that its admission into evidence against the defendant did not violate the Confrontation Clause. Although the Court's ultimate conclusion was that the confession did not bear sufficient indicia of reliability, its analysis was far different from that utilized by the Court in the present case. The Court today notes that, in Lee, we determined the trustworthiness of the confession by looking to the circumstances surrounding its making, see ante at 821; what the Court omits from its discussion of Lee is the fact that we also considered the extent of the "interlock," that is, the extent to which the two confessions corroborated each other. The Court in Lee was unanimous in its recognition of corroboration as a legitimate indicator of reliability; the only disagreement was whether the corroborative nature of the confessions and the circumstances of their making were sufficient to satisfy the Confrontation Clause. See 476 U.S., at 546 (finding insufficient indicia of reliability, "flowing from either the circumstances surrounding the confession or the `interlocking' character of the confessions," to support admission of the codefendant's confession) (emphasis added); id., at 557 (BLACKMUN, J., dissenting) (finding the codefendant's confession supported by sufficient indicia of reliability including, inter alia, "extensive and convincing corroboration by petitioner's own confession" and "further corroboration provided by the physical evidence"). See also New Mexico v. Earnest, , n.* (1986) (REHNQUIST, J., concurring); Dutton v. Evans, (plurality opinion).The Court today suggests that the presence of corroborating evidence goes more to the issue of whether the admission of the hearsay statements was harmless error than whether the statements themselves were reliable, and therefore admissible. See ante at 823. Once again, in the context of interlocking confessions, our previous cases have been unequivocal in rejecting this suggestion: "Quite obviously, what the "interlocking" nature of the codefendant's confession pertains to is not its harmfulness, but rather its reliability: If it confirms essentially the same facts as the defendant's own confession, it is more likely to be true." Cruz v. New York, (emphasis in original). It was precisely because the "interlocking" nature of the confessions heightened their reliability as hearsay that we noted in Cruz that, "[o]f course, the defendant's confession may be considered at trial in assessing whether his codefendant's statements are supported by sufficient "indicia of reliability" to be directly admissible against him." Id., at 193-194 (citing Lee, supra, at 543-544). In short, corroboration has been an essential element in our past hearsay cases, and there is no justification for a categorical refusal to consider it here.Our Fourth Amendment cases are also premised upon the idea that corroboration is a legitimate indicator of reliability. We have long held that corroboration is an essential element in determining whether police may act on the basis of an informant's tip, for the simple reason that "because an informant is shown to be right about some things, he is probably right about other facts that he has alleged." Alabama v. White, . See also Illinois v. Gates, , 245 (1983); Spinelli v. United States, ; Jones v. United States, .The Court does not offer any justification for barring the consideration of corroborating evidence other than the suggestion that corroborating evidence does not bolster the "inherent trustworthiness" of the statements. Ante at 822. But for purposes of determining the reliability of the statements, I can discern no difference between the factors that the Court believes indicate "inherent trustworthiness" and those, like corroborating evidence, that apparently do not. Even the factors endorsed by the Court will involve consideration of the very evidence the Court purports to exclude from the reliability analysis. The Court notes that one test of reliability is whether the child "use[d] ... terminology unexpected of a child of similar age." Ante, at 821. But making this determination requires consideration of the child's vocabulary skills and past opportunity, or lack thereof, to learn the terminology at issue. And, when all of the extrinsic circumstances of a case are considered, it may be shown that use of a particular word or vocabulary in fact supports the inference of prolonged contact with the defendant, who was known to use the vocabulary in question. As a further example, the Court notes that motive to fabricate is an index of reliability. Ibid. But if the suspect charges that a third person concocted a false case against him and coached the child, surely it is relevant to show that the third person had no contact with the child or no opportunity to suggest false testimony. Given the contradictions inherent in the Court's test when measured against its own examples, I expect its holding will soon prove to be as unworkable as it is illogical.The short of the matter is that both the circumstances existing at the time the child makes the statements and the existence of corroborating evidence indicate, to a greater or lesser degree, whether the statements are reliable. If the Court means to suggest that the circumstances surrounding the making of a statement are the best indicators of reliability, I doubt this is so in every instance. And, if it were true in a particular case, that does not warrant ignoring other indicators of reliability such as corroborating evidence, absent some other reason for excluding it. If anything, I should think that corroborating evidence in the form of testimony or physical evidence, apart from the narrow circumstances in which the statement was made, would be a preferred means of determining a statement's reliability for purposes of the Confrontation Clause, for the simple reason that, unlike other indicators of trustworthiness, corroborating evidence can be addressed by the defendant and assessed by the trial court in an objective and critical way.In this case, the younger daughter's statements are corroborated in at least four respects: (1) physical evidence that she was the victim of sexual abuse; (2) evidence that she had been in the custody of the suspect at the time the injuries occurred; (3) testimony of the older daughter that their father abused the younger daughter, thus corroborating the younger daughter's statement; and (4) the testimony of the older daughter that she herself was abused by their father, thus corroborating the younger daughter's statement that her sister had also been abused. These facts, coupled with the circumstances surrounding the making of the statements acknowledged by the Court as suggesting that the statements are reliable, give rise to a legitimate argument that admission of the statements did not violate the Confrontation Clause. Because the Idaho Supreme Court did not consider these factors, I would vacate its judgment reversing respondent's conviction and remand for it to consider in the first instance whether the child's statements bore "particularized guarantees of trustworthiness" under the analysis set forth in this separate opinion.For these reasons, I respectfully dissent. |
8 | Per Curiam. The writ of certiorari is dismissed as improvidently granted.It is so ordered. |
4 | Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence's apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. The court considered Bowers v. Hardwick, 478 U. S. 186, controlling on that point.Held: The Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. Pp. 3-18. (a) Resolution of this case depends on whether petitioners were free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause. For this inquiry the Court deems it necessary to reconsider its Bowers holding. The Bowers Court's initial substantive statement--"The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy ... ," 478 U. S., at 190 — discloses the Court's failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it said that marriage is just about the right to have sexual intercourse. Although the laws involved in Bowers and here purport to do not more than prohibit a particular sexual act, their penalties and purposes have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. They seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. Pp. 3-6. (b) Having misapprehended the liberty claim presented to it, the Bowers Court stated that proscriptions against sodomy have ancient roots. 505 U. S. 833, 850. The Nation's laws and traditions in the past half century are most relevant here. They show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. See County of Sacramento v. Lewis, 523 U. S. 833, 857. Pp. 6-12. (c) Bowers' deficiencies became even more apparent in the years following its announcement. The 25 States with laws prohibiting the conduct referenced in Bowers are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States, including Texas, that still proscribe sodomy (whether for same-sex or heterosexual conduct), there is a pattern of nonenforcement with respect to consenting adults acting in private. Casey, supra, at 851 — which confirmed that the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education — and Romer v. Evans, 517 U. S. 620, 624 — which struck down class-based legislation directed at homosexuals — cast Bowers' holding into even more doubt. The stigma the Texas criminal statute imposes, moreover, is not trivial. Although the offense is but a minor misdemeanor, it remains a criminal offense with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms, and registration as sex offenders under state law. Where a case's foundations have sustained serious erosion, criticism from other sources is of greater significance. In the United States, criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. And, to the extent Bowers relied on values shared with a wider civilization, the case's reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. Stare decisis is not an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828. Bowers' holding has not induced detrimental reliance of the sort that could counsel against overturning it once there are compelling reasons to do so. Casey, supra, at 855-856. Bowers causes uncertainty, for the precedents before and after it contradict its central holding. Pp. 12-17. (d) Bowers' rationale does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State's governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of "liberty" protected by due process. That analysis should have controlled Bowers, and it controls here. Bowers was not correct when it was decided, is not correct today, and is hereby overruled. This case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention. Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the individual's personal and private life. Pp. 17-18.41 S. W. 3d 349, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined. Thomas, J., filed a dissenting opinion.JOHN GEDDES LAWRENCE and TYRON GARNER,PETITIONERS v. TEXASon writ of certiorari to the court of appeals oftexas, fourteenth district[June 26, 2003] Justice Kennedy delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. §21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:"(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or"(B) the penetration of the genitals or the anus of another person with an object." §21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, §3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:"1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law — which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples — violate the Fourteenth Amendment guarantee of equal protection of laws?"2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?"3. Whether Bowers v. Hardwick, 478 U. S. 186 (1986), should be overruled?" Pet. for Cert. i. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:"It is true that in Griswold the right of privacy in question inhered in the marital relationship... . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick. The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g., 2 J. Bishop, Criminal Law §1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes §203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18. It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. §201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct"). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ ;52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:" These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann., §§15:540-15:549 (West 2003); Miss. Code Ann. §§45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution — A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee ("Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision' ") (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.JOHN GEDDES LAWRENCE and TYRON GARNER,PETITIONERS v. TEXASon writ of certiorari to the court of appeals oftexas, fourteenth district[June 26, 2003] Justice O'Connor, concurring in the judgment. The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. §21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992). Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare ... desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to " 'discriminate against hippies.' " 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences — like fraternity houses and apartment buildings — did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U. S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17-18 (opinion of Scalia, J.). The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct — and only that conduct — subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that §21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under §21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. As the Court notes, see ante, at 15, petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code Ann. §164.051(a)(2)(B) (2003 Pamphlet) (physician); §451.251 (a)(1) (athletic trainer); §1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e.g., Idaho Code §18-8304 (Cum. Supp. 2002); La. Stat. Ann. §15:542 (West Cum. Supp. 2003); Miss. Code Ann. §45-33-25 (West 2003); S. C. Code Ann. §23-3-430 (West Cum. Supp. 2002); cf. ante, at 15. And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992). Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished. This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634. Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 163 U. S. 537, 559 (1896) (Harlan, J. dissenting)). A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass ... cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring). Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. In the words of Justice Jackson:"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion). That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations — the asserted state interest in this case — other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.JOHN GEDDES LAWRENCE and TYRON GARNER,PETITIONERS v. TEXASon writ of certiorari to the court of appeals oftexas, fourteenth district[June 26, 2003] Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting. "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier. Most of the rest of today's opinion has no relevance to its actual holding — that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia's anti-sodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 4, and "fundamental decisions," ibid. nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce ... a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"--which it undoubtedly is — and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.I I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish — or indeed, even bother to mention — the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:" Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] ... its decision has a dimension that the resolution of the normal case does not carry... . [T]o overrule under fire in the absence of the most compelling reason ... would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven 'unworkable,' " Casey, supra, at 855. Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante, at 15; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 16. The problem is that Roe itself — which today's majority surely has no disposition to overrule — satisfies these conditions to at least the same degree as Bowers. (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 10. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (" 'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life' "): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law. I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting).) But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are " 'deeply rooted in this Nation's history and tradition' " qualify for anything other than rational basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition. (2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 15. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution — A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe ... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]"). (3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding ... ." Ante, at 16. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality ... indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality ... rather than confined to preventing demonstrable harms"); Holmes v. California Army National Guard 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.2 What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State. To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.II Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional. Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 13 (" ' These matters ... are central to the liberty protected by the Fourteenth Amendment' "); ante, at 17 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:"No state shall ... deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added). Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a 'liberty' be 'fundamental' ... but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not " 'deeply rooted in this Nation's history and tradition,' " id., at 192. The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is " 'deeply rooted in this Nation's history and tradition,' " the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 18. I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"--even though, as I have said, the Court does not have the boldness to reverse that conclusion.III The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 5. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold — a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right. Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was " 'deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty ... is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that anti-abortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 (joint opinion of O'Connor, Kennedy, and Souter, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)--and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest"). After discussing the history of antisodomy laws, ante, at 7-10, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, at 7. This observation in no way casts into doubt the "definitive [historical] conclusion," id., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general — regardless of whether it was performed by same-sex or opposite-sex couples:"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized — which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied. Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 8. The key qualifier here is "acting in private"--since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequent," ante, at 9). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable. Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 11 (emphasis added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize " 'consensual sexual relations conducted in private,' " ante, at 11, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159. In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not " 'deeply rooted in this Nation's history and tradition,' " 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).IV I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence — indeed, with the jurisprudence of any society we know — that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196 — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.V Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers — society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner — for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. Justice O'Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor."While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class." Ante, at 5.Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality. Justice O'Connor simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does Justice O'Connor explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting " 'a ... desire to harm a politically unpopular group,' " ante, at 2, are invalid even though there may be a conceivable rational basis to support them. This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in §21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence Justice O'Connor has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).* * * Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653. One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. §654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000). Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts — or, for that matter, display any moral disapprobation of them — than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best. One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion — after having laid waste the foundations of our rational-basis jurisprudence — the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 13 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so. The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.JOHN GEDDES LAWRENCE and TYRON GARNER,PETITIONERS v. TEXASon writ of certiorari to the court of appeals oftexas, fourteenth district[June 26, 2003] Justice Thomas, dissenting. I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.' " Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 1.FOOTNOTESFootnote 1 This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.Footnote 2 While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. §654(b)(1) ("A member of the armed forces shall be separated from the armed forces ... if ... the member has engaged in ... a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting — on the basis of the rational-basis standard — an equal-protection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearance).Footnote 3 The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry," ante, at 11. An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed," ibid. Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case. |
0 | In a Texas state court, petitioner was convicted of murdering his wife and was sentenced to death. At his trial, he admitted the killing but claimed it occurred in a fit of passion when he discovered his wife, whom he had already suspected of marital infidelity, kissing another man late at night in a parked car. Had this claim been accepted by the jury, it could have found him guilty of "murder without malice" which, under a Texas statute, was punishable by a maximum sentence of five years' imprisonment. The other man testified at the trial that his relationship with petitioner's wife was nothing more than a casual friendship and that he had simply driven her home from work a few times. In a subsequent habeas corpus proceeding, the other man confessed to having had sexual intercourse with petitioner's wife on several occasions and testified that he had informed the prosecutor of this before the trial and that the prosecutor had told him he should not volunteer any information about it. The prosecutor admitted that these statements were true. Petitions for writs of habeas corpus were denied both by the trial court and by the Texas Court of Criminal Appeals. Held: Petitioner was denied due process of law; the judgment denying a writ of habeas corpus is reversed; and the cause is remanded. Pp. 28-32. Reversed and remanded.Fred A. Semaan and Raul Villarreal argued the cause, and Mr. Semaan filed a brief, for petitioner.Roy R. Barrera and Hubert W. Green, Jr. argued the cause for respondent. With them on the brief was Will Wilson, Attorney General of Texas.PER CURIAM.Petitioner, Alvaro Alcorta, was indicted for murder in a Texas state court for stabbing his wife to death. Vernon's Tex. Pen. Code, 1948, Art. 1256. He admitted the killing but claimed it occurred in a fit of passion when he discovered his wife, whom he had already suspected of marital infidelity, kissing one Castilleja late at night in a parked car. Petitioner relied on Texas statutes which treat killing under the influence of a "sudden passion arising from an adequate cause ... as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection" as murder without malice punishable by a maximum sentence of five years' imprisonment. Vernon's Tex. Pen. Code, 1948, Arts. 1257a, 1257b, 1257c. The jury, however, found him guilty of murder with malice and, acting under broad statutory authority to determine the extent of punishment, sentenced him to death. The judgment and sentence were affirmed by the Texas Court of Criminal Appeals. 165 Tex. Cr. R. ___, 294 S. W. 2d 112.Castilleja, the only eye witness to the killing, testified for the State at petitioner's trial. In response to inquiries by the prosecutor about his relationship with the petitioner's wife, Castilleja said that he had simply driven her home from work a couple of times, and in substance testified that his relationship with her had been nothing more than a casual friendship. He stated that he had given her a ride on the night she was killed and was parked in front of her home with his car lights out at two o'clock in the morning because of engine trouble. The prosecutor then asked what had transpired between Castilleja and petitioner's wife in the parked car: "Q. Did you have a conversation with Herlinda? "A. Yes; she opened the door. She was going to get off [sic] and, then, she told me to tell my sister to come and pick her up in the morning so she could go to church. "Q. To tell your sister, Delfina Cabrera, to come pick her up in the morning so she could go to church? "A. Yes." At the conclusion of Castilleja's testimony the following colloquy took place between him and the prosecutor: "Q. Natividad [Castilleja], were you in love with Herlinda? "A. No. "Q. Was she in love with you? "A. No. "Q. Had you ever talked about love? "A. No. "Q. Had you ever had any dates with her other than to take her home? "A. No. Well, just when I brought her from there. "Q. Just when you brought her from work? "A. Yes." All this testimony was quite plainly inconsistent with petitioner's claim that he had come upon his wife kissing Castilleja in the parked car.Some time after petitioner's conviction had been affirmed Castilleja issued a sworn statement in which he declared that he had given false testimony at the trial. Relying on this statement petitioner asked the trial court to issue a writ of habeas corpus. He contended that he had been denied a fair trial in violation of State and Federal Constitutions because Castilleja had testified falsely, with the knowledge of the prosecutor, that his relationship with petitioner's wife had been only "that of a friend and neighbor, and that he had had no `dates,' nor other relations with her, when in truth and in fact the witness had been her lover and paramour, and had had sexual intercourse with her on many occasions ... ." Petitioner further alleged that he had no knowledge of this illicit intercourse at the time of his trial.A hearing was held on the petition for habeas corpus. Castilleja was called as a witness. He confessed having sexual intercourse with petitioner's wife on five or six occasions within a relatively brief period before her death. He testified that he had informed the prosecutor of this before trial and the prosecutor had told him he should not volunteer any information about such intercourse but if specifically asked about it to answer truthfully. The prosecutor took the stand and admitted that these statements were true. He conceded that he had not told petitioner about Castilleja's illicit intercourse with his wife. He also admitted that he had not included this information in a written statement taken from Castilleja prior to the trial but instead had noted it in a separate record. At the conclusion of the hearing the trial judge denied the petition for habeas corpus. Petitioner then applied to the Texas Court of Criminal Appeals for a writ of habeas corpus but that court, acting on the record made at the hearing before the trial court, also refused to issue the writ. We granted certiorari, . Texas concedes that petitioner has exhausted all remedies available to him under state law.Under the general principles laid down by this Court in Mooney v. Holohan, , and Pyle v. Kansas, , petitioner was not accorded due process of law. It cannot seriously be disputed that Castilleja's testimony, taken as a whole, gave the jury the false impression that his relationship with petitioner's wife was nothing more than that of casual friendship. This testimony was elicited by the prosecutor who knew of the illicit intercourse between Castilleja and petitioner's wife. Undoubtedly Castilleja's testimony was seriously prejudicial to petitioner. It tended squarely to refute his claim that he had adequate cause for a surge of "sudden passion" in which he killed his wife. If Castilleja's relationship with petitioner's wife had been truthfully portrayed to the jury, it would have, apart from impeaching his credibility, tended to corroborate petitioner's contention that he had found his wife embracing Castilleja. If petitioner's defense had been accepted by the jury, as it might well have been if Castilleja had not been allowed to testify falsely, to the knowledge of the prosecutor, his offense would have been reduced to "murder without malice" precluding the death penalty now imposed upon him.The judgment is reversed and the cause is remanded to the Court of Criminal Appeals of the State of Texas for further proceedings not inconsistent with this opinion. It is so ordered. |
1 | Held: The Court of Appeals' decision upholding, as not in conflict with governing federal law, a California statute that denies Medicaid benefits to "medically needy" persons because of their previous transfers of assets for less than full consideration is vacated, and the case is remanded. After this Court's grant of certiorari, Congress amended the Social Security Act to alter significantly the federal standards governing state Medicaid plans with respect to transfer-of-asset rules. This change, which may require some modification of the California rule, makes it inappropriate for this Court to decide the merits of the underlying dispute as considered by the Court of Appeals. Instead, the recent statutory amendment requires reconsideration of the decision below by the Court of Appeals. 622 F.2d 1304, vacated and remanded.Gill Deford argued the cause for petitioner. With him on the briefs was Neal S. Dudovitz.Richard J. Magasin, Deputy Attorney General of California, argued the cause for respondents. With him on the brief were George Deukmejian, Attorney General, Thomas E. Wariner, Assistant Attorney General, and Anne S. Pressman and Donald A. Robinson, Deputy Attorneys General.* [Footnote *] Robert Abrams, Attorney General of New York, Shirley Adelson Seigel, Solicitor General, Clifford A. Royael, and Stephen H. Sachs, Attorney General of Maryland, filed a brief for the Attorney General of New York et al. as amici curiae urging affirmance.PER CURIAM.We granted a writ of certiorari, , to review a decision of the United States Court of Appeals for the Ninth Circuit, holding that California's "transfer-of-assets" statute applicable to "medically needy" recipients of Medicaid benefits does not conflict with governing federal law. Dawson v. Myers, 622 F.2d 1304 (1980). Petitioner is an individual considered "medically needy" under California's Medicaid plan,1 who represents the class of all such persons who have been denied Medicaid benefits because of previous transfers of assets for less than full consideration.2 She argues that this exclusion is impermissible because it is based on a rule applicable only to "medically needy" recipients, and could not apply under federal law to "categorically needy" recipients.3 After our grant of certiorari on November 3, 1980, Congress passed 5 of Pub. L. 96-611, 94 Stat. 3567 (Dec. 28, 1980) (the "Boren-Long Amendment"), which made material changes in the law in this area. This section creates a presumption that assets disposed of for less than full consideration within the preceding 24 months should be included in the resources of an applicant for SSI benefits. The applicant can overcome this presumption with "convincing evidence to establish that the transaction was exclusively for some ... purpose" other than establishing eligibility. 5 (a) (amending 1613 of the Social Security Act, 42 U.S.C. 1382b). This section goes on to allow state Medicaid plans to apply similar rules to Medicaid recipients - including both the categorically needy and the medically needy. Pub. L. 96-611, 5 (b), 94 Stat. 3568 (amending 1902 of the Social Security Act, 42 U.S.C. 1396a). It states that if the state plan includes a transfer-of-assets rule, it shall specify a procedure for implementing the denial of benefits "which, except as provided in paragraph (2), is not more restrictive than the procedure specified" for SSI. Paragraph (2) provides that where the uncompensated value of the disposed-of resources exceeds $12,000, the States may impose a period of ineligibility exceeding 24 months, as long as this period bears "a reasonable relationship to such uncompensated value."In sum, it would appear that in the future the States will be permitted to impose transfer-of-assets restrictions generally similar to that of California. This change will take effect on July 1, 1981, Pub. L. 96-611, 2, 94 Stat. 3567 - a matter of weeks from now. This raises the question whether it is appropriate for the Court to decide the merits of the underlying dispute as considered by the Court of Appeals.We have determined that the change caused by the recent statutory amendment requires reconsideration of the decision below by the Court of Appeals. Because of the statutory change, the federal standards governing state plans with respect to transfer-of-asset rules have been altered significantly. Although it is fair to say that Congress generally endorsed rules like California's, the detailed provisions recently enacted may require some changes in the California rule. We note in particular that California seems to include the residence of the claimant among the assets that may not be given away without a corresponding loss in Medicaid coverage.4 Under the Boren-Long Amendment, however, arguably such an asset must be excluded.5 Petitioner should have the opportunity to argue the validity of the California law under the new federal law - an issue that was not addressed by the parties in this Court.We vacate the decision below, and remand this case to the Court of Appeals for reconsideration of its decision in light of the recent statutory change. It is so ordered. |
0 | Certiorari granted; vacated and remanded.Byron J. Walters for petitioner.Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and C. Anthony Collins, Deputy Attorney General, for respondent.PER CURIAM.The petition for a writ of certiorari is granted. The judgment is vacated and the case remanded for further consideration in the light of Chapman v. California, ante, p. 18.MR. JUSTICE STEWART would grant certiorari and reverse the judgment for the reasons stated in his opinion concurring in the result in Chapman v. California, ante, at 42. |
1 | Per Curiam. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. §2000e-3(a), it is unlawful "for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." In 1997, respondent filed a §2000e-3(a) retaliation claim against petitioner Clark County School District. The claim as eventually amended alleged that petitioner had taken two separate adverse employment actions against her in response to two different protected activities in which she had engaged. The District Court granted summary judgment to petitioner, No. CV-S-97-365-DWH(RJJ) (D. Nev., Feb. 9, 1999), but a panel of the Court of Appeals for the Ninth Circuit reversed over the dissent of Judge Fernandez, No. 99-15522, 2000 WL 991821 (July 19, 2000) (per curiam) (unpublished), judgt. order reported at 232 F. 3d 893. We grant the writ of certiorari and reverse. On October 21, 1994, respondent's male supervisor met with respondent and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, "I hear making love to you is like making love to the Grand Canyon." Brief in Opposition 3. At the meeting respondent's supervisor read the comment aloud, looked at respondent and stated, "I don't know what that means." Ibid. The other employee then said, "Well, I'll tell you later," and both men chuckled. Ibid. Respondent later complained about the comment to the offending employee, to Assistant Superintendent George Ann Rice, the employee's supervisor, and to another assistant superintendent of petitioner. Her first claim of retaliation asserts that she was punished for these complaints. The Court of Appeals for the Ninth Circuit has applied §2000e-3(a) to protect employee "oppos[ition]" not just to practices that are actually "made ... unlawful" by Title VII, but also to practices that the employee could reasonably believe were unlawful. 2000 WL 991821, at *1 (stating that respondent's opposition was protected "if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment"); Trent v. Valley Electric Assn. Inc., 41 F. 3d 524, 526 (CA9 1994). We have no occasion to rule on the propriety of this interpretation, because even assuming it is correct, no one could reasonably believe that the incident recounted above violated Title VII. Title VII forbids actions taken on the basis of sex that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U. S. C. §2000e-2(a)(1). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is "so 'severe or pervasive' as to 'alter the conditions of [the victim's] employment and create an abusive working environment.' " Faragher v. Boca Raton, 524 U. S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 752 (1998) (Only harassing conduct that is "severe or pervasive" can produce a "constructive alteratio[n] in the terms or conditions of employment"); Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 81 (1998) (Title VII "forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment"). Workplace conduct is not measured in isolation; instead, "whether an environment is sufficiently hostile or abusive" must be judged "by 'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' " Faragher v. Boca Raton, supra, at 787-788 (quoting Harris v. Forklift Systems, Inc., 510 U. S. 17, 23 (1993)). Hence, "[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.' " Faragher v. Boca Raton, supra, at 788 (citation and quotation marks omitted). No reasonable person could have believed that the single incident recounted above violated Title VII's standard. The ordinary terms and conditions of respondent's job required her to review the sexually explicit statement in the course of screening job applicants. Her co-workers who participated in the hiring process were subject to the same requirement, and indeed, in the District Court respondent "conceded that it did not bother or upset her" to read the statement in the file. App. to Pet. for Cert. 15 (District Court opinion). Her supervisor's comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker's responding comment; and the chuckling of both are at worst an "isolated inciden[t]" that cannot remotely be considered "extremely serious," as our cases require, Faragher v. Boca Raton, supra, at 788. The holding of the Court of Appeals to the contrary must be reversed. Besides claiming that she was punished for complaining to petitioner's personnel about the alleged sexual harassment, respondent also claimed that she was punished for filing charges against petitioner with the Nevada Equal Rights Commission and the Equal Employment Opportunity Commission (EEOC) and for filing the present suit. Respondent filed her lawsuit on April 1, 1997; on April 10, 1997, respondent's supervisor, Assistant Superintendent Rice, "mentioned to Allin Chandler, Executive Director of plaintiff's union, that she was contemplating transferring plaintiff to the position of Director of Professional Development Education," App. to Pet. for Cert. 11-12 (District Court opinion); and this transfer was "carried through" in May, Brief in Opposition 8. In order to show, as her defense against summary judgment required, the existence of a causal connection between her protected activities and the transfer, respondent "relie[d] wholly on the temporal proximity of the filing of her complaint on April 1, 1997 and Rice's statement to plaintiff's union representative on April 10, 1997 that she was considering transferring plaintiff to the [new] position." App. to Pet. for Cert. 21-22 (District Court opinion). The District Court, however, found that respondent did not serve petitioner with the summons and complaint until April 11, 1997, one day after Rice had made the statement, and Rice filed an affidavit stating that she did not become aware of the lawsuit until after April 11, a claim that respondent did not challenge. Hence, the court concluded, respondent "ha[d] not shown that any causal connection exists between her protected activities and the adverse employment decision." Id., at 21. The Court of Appeals reversed, relying on two facts: The EEOC had issued a right-to-sue letter to respondent three months before Rice announced she was contemplating the transfer, and the actual transfer occurred one month after Rice learned of respondent's suit. 2000 WL 991821, at *3. The latter fact is immaterial in light of the fact that petitioner concededly was contemplating the transfer before it learned of the suit. Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality. As for the right-to-sue letter: Respondent did not rely on that letter in the District Court and did not mention it in her opening brief on appeal. Her demonstration of causality all along had rested upon the connection between the transfer and the filing of her lawsuit — to which connection the letter was irrelevant. When, however, petitioner's answering brief in the Court of Appeals demonstrated conclusively the lack of causation between the filing of respondent's lawsuit and Rice's decision, respondent mentioned the letter for the first time in her reply brief, Reply Brief in No. 99-15522 (CA9) pp. 9-10. The Ninth Circuit's opinion did not adopt respondent's utterly implausible suggestion that the EEOC's issuance of a right-to-sue letter — an action in which the employee takes no part — is a protected activity of the employee, see 42 U. S. C. §2000e-3(a). Rather, the opinion suggests that the letter provided petitioner with its first notice of respondent's charge before the EEOC, and hence allowed the inference that the transfer proposal made three months later was petitioner's reaction to the charge. See 2000 WL 991821, at *3. This will not do. First, there is no indication that Rice even knew about the right-to-sue letter when she proposed transferring respondent. And second, if one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed. (The complaint had been filed on August 23, 1995, and both Title VII and its implementing regulations require that an employer be given notice within 10 days of filing, 42 U. S. C. §§2000e-5(b), (e)(1); 29 CFR §1601.14 (2000).) The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close," O'Neal v. Ferguson Constr. Co., 237 F. 3d 1248, 1253 (CA10 2001). See e.g., Richmond v. Oneok, Inc., 120 F. 3d 205, 209 (CA10 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F. 2d 1168, 1174-1175 (CA7 1992) (4-month period insufficient). Action taken (as here) 20 months later suggests, by itself, no causality at all. In short, neither the grounds that respondent presented to the District Court, nor the ground she added on appeal, nor even the ground the Court of Appeals developed on its own, sufficed to establish a dispute substantial enough to withstand the motion for summary judgment. The District Court's granting of that motion was correct. The judgment of the Court of Appeals is reversed.It is so ordered. |
1 | Petitioner alleges he was denied equal protection because as a pauper he was unable to furnish and pay for transcript of trial required by court rules to be filed with appeal in post-conviction proceeding in state court, and also that he was denied services of public defender. Held: Certiorari granted; order of dismissal vacated; and case remanded for further consideration. 239 Ind. 707, 158 N. E. 2d 292, vacated and remanded.Petitioner pro se.Edwin K. Steers, Attorney General of Indiana, and Richard M. Givan, Deputy Attorney General, for respondent.PER CURIAM.The motion for leave to proceed in forma pauperis and the writ of certiorari are granted. Petitioner's attempted appeal to the Supreme Court of Indiana from a denial of relief in a post-conviction coram nobis proceeding was dismissed because of his failure to comply with rules of that court, requiring, inter alia, the filing of a transcript of the trial proceedings. He alleges that the dismissal denied him the equal protection of the laws because he was and is unable to pay for the preparation of such a transcript, see Griffin v. Illinois, , and that although he attempted to avail himself of the services of the Indiana Public Defender, who is empowered to secure the preparation of such a transcript in paupers' cases, see Burns' Indiana Stats. (1956 Repl.), 13-1401 et seq., that officer declined to assist him. The record before us does not disclose whether these allegations were made to, and passed on by, the Indiana Supreme Court in light of Griffin v. Illinois, supra. Accordingly we vacate the order of dismissal and remand the case to it for further consideration of the appeal. |
6 | Petitioners, St. Louis police sergeants and a lieutenant, sued respondent police commissioners for overtime pay under the Fair Labor Standards Act of 1938 (FLSA). Respondents argued that petitioners were "bona fide executive, administrative, or professional" employees exempted from overtime pay requirements by 29 U.S.C. § 213(a)(1). Under the Secretary of Labor's regulations, that exemption applies to employees paid a specified minimum amount on a "salary basis," which requires that the "compensation ... not [be] subject to reduction because of variations in the quality or quantity of the work performed." Petitioners claimed that they did not meet this test because, under the terms of the Police Department Manual, their compensation could theoretically be reduced (though this was not the department's general practice) for a variety of disciplinary infractions related to the "quality or quantity" of their work. Both the District Court and the Eighth Circuit disagreed with that assertion, holding that the salary basis test was satisfied as to all petitioners.Held:1. The "no disciplinary deductions" element of the salary basis test reflects a permissible reading of the FLSA as it applies to public sector employees. It is not apparent that the Secretary's interpretation of §213(a)(1) is rendered unreasonable, as applied to public sector employees, by the absence of other (non salary reduction) means of discipline, or by the peculiar needs of "quasi military" law enforcement organizations. The Secretary's approach must therefore be sustained, given §213(a)(1)'s grant of broad authority to the Secretary to "defin[e] and delimi[t]" the statutory exemption's scope. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., . Respondents' procedural objection to the Secretary's failureto amend the disciplinary deduction rule in the wake of Garcia v. San Antonio Metropolitan Transit Authority, , cannot be raised in the first instance in this lawsuit, but must be presented initially in a petition to the Secretary for amendatory rulemaking under the Administrative Procedure Act, 5 U.S.C. § 553(e). Pp. 3-6.2. The Secretary has reasonably interpreted the salary basis test to be met when an employee's compensation may not "as a practical matter" be adjusted in ways inconsistent with the test. The standard is violated, the Secretary says, if there is either an actual practice of making deductions or an employment policy that creates a "significant likelihood" of them. Because the regulation's critical phrase "subject to" comfortably bears the meaning the Secretary assigns, his interpretation of his own test is not "plainly erroneous," and thus is controlling. Robertson v. Methow Valley Citizens Council, . The Secretary's interpretation is not rendered unworthy of deference by the fact that it is set forth in an amicus brief; it is not a position adopted in response to litigation, and there is no reason to suspect that it does not reflect the Secretary's fair and considered judgment. Nor does the rule requiring that FLSA exemptions be narrowly construed against employers apply here; that rule governs judicial interpretation of statutes and regulations, and does not limit the Secretary's power to resolve ambiguities in his own regulations. Pp. 6-10.3. The regulations entitle employers to preserve the exempt status of employees who have been subjected to pay deductions inconsistent with the salary basis test by reimbursing those employees and promising to comply with the test in the future, so long as the deductions in question were either inadvertent or made for reasons other than lack of work. Pp. 10-11.65 F. 3d 702, affirmed.Scalia, J., delivered the opinion for a unanimous Court.NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNo. 95-897FRANCIS BERNARD AUER, et al., PETITIONERS v. DAVID A. ROBBINS et al.on writ of certiorari to the united states court of appeals for the eighth circuit[February 19, 1977]Justice Scalia delivered the opinion of the Court.The Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U.S.C. §§ 201 et seq., exempts "bona fide executive, administrative, or professional" employees from overtime pay requirements. This case presents the question whether the Secretary of Labor's "salary basis" test for determining an employee's exempt status reflects a permissible reading of the statute as it applies to public sector employees. We also consider whether the Secretary has reasonably interpreted the salary basis test to deny an employee salaried status (and thus grant him overtime pay) when his compensation may "as a practical matter" be adjusted in ways inconsistent with the test.Petitioners are sergeants and a lieutenant employed by the St. Louis Police Department. They brought suit in 1988 against respondents, members of the St. Louis Board of Police Commissioners, seeking payment of overtime pay that they claimed was owed under §7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1). Respondents argued that petitioners were not entitled to such pay because they came within the exemption provided by §213(a)(1)for "bona fide executive, administrative, or professional" employees.Under regulations promulgated by the Secretary, one requirement for exempt status under §213(a)(1) is that the employee earn a specified minimum amount on a "salary basis." 29 CFR §§ 541.1(f), 541.2(e), 541.3(e) (1996). According to the regulations, "[a]n employee will be considered to be paid `on a salary basis' ... if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." §541.118(a). Petitioners contended that the salary basis test was not met in their case because, under the terms of the St. Louis Metropolitan Police Department Manual, their compensation could be reduced for a variety of disciplinary infractions related to the "quality or quantity" of work performed. Petitioners also claimed that they did not meet the other requirement for exempt status under §213(a)(1): that their duties be of an executive, administrative, or professional nature. See §§541.1(a)%(e), 541.2(a)%(d), 541.3(a)%(d).The District Court found that petitioners were paid on a salary basis and that most, though not all, also satisfied the duties criterion. The Court of Appeals affirmed in part and reversed in part, holding that both the salary basis test and the duties test were satisfied as to all petitioners. 65 F. 3d 702 (CA8 1995). We granted certiorari. ___ (1996). 1 The FLSA grants the Secretary broad authority to "defin[e] and delimi[t]" the scope of the exemption for executive, administrative, and professional employees. §213(a)(1). Under the Secretary's chosen approach, exempt status requires that the employee be paid on a salary basis, which in turn requires that his compensation not be subject to reduction because of variations in the "quality or quantity of the work performed," 29 CFR § 541.118(a) (1996). Because the regulation goes on to carve out an exception from this rule for "[p]enalties imposed ... for infractions of safety rules of major significance," §541.118(a)(5), it is clear that the rule embraces reductions in pay for disciplinary violations. The Secretary is of the view that employees whose pay is adjusted for disciplinary reasons do not deserve exempt status because as a general matter true "executive, administrative, or professional" employees are not "disciplined" by piecemeal deductions from their pay, but are terminated, demoted, or given restricted assignments.The FLSA did not apply to state and local employees when the salary basis test was adopted in 1940. See 29 U.S.C. § 203(d) (1940 ed.); 5 Fed. Reg. 4077 (1940) (salary basis test). In 1974 Congress extended FLSA coverage to virtually all public sector employees, Pub. L. 93-259, §6, 88 Stat. 58-62, and in 1985 we held that this exercise of power was consistent with the TenthAmendment, Garcia v. San Antonio Metropolitan Transit Authority, (overruling National League of Cities v. Usery, ). The salary basis test has existed largely in its present form since 1954, see 19 Fed. Reg. 4405 (1954), and is expressly applicable to public sector employees, see 29 CFR §§ 553.2(b), 553.32(c) (1996).Respondents concede that the FLSA may validly be applied to the public sector, and they also do not raise any general challenge to the Secretary's reliance on the salary basis test. They contend, however, that the "no disciplinary deductions" element of the salary basis test is invalid for public sector employees because as applied to them it reflects an unreasonable interpretation of the statutory exemption. That is so, they say, because the ability to adjust public sector employees' pay — even executive, administrative or professional employees' pay — as a means of enforcing compliance with work rules is a necessary component of effective government. In the public sector context, they contend, fewer disciplinary alternatives to deductions in pay are available.Because Congress has not "directly spoken to the precise question at issue," we must sustain the Secretary's approach so long as it is "based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., . While respondents' objections would perhaps support a different application of the salary basis test for public employees, we cannot conclude that they compel it. The Secretary's view that public employers are not so differently situated with regard to disciplining their employees as to require wholesale revision of his time tested rule simply cannot be said to be unreasonable. We agree with the Seventh Circuit that no "principle of public administration that has been drawn to our attention ... makes it imperative" that public sector employers have the ability toimpose disciplinary pay deductions on individuals employed in genuine executive, administrative, or professional capacities. Mueller v. Reich, 54 F. 3d 438, 442 (1995), cert. pending, No. 95-586.Respondents appeal to the "quasi military" nature of law enforcement agencies such as the St. Louis Police Department. The ability to use the full range of disciplinary tools against even relatively senior law enforcement personnel is essential, they say, to maintaining control and discipline in organizations in which human lives are on the line daily. It is far from clear, however, that only a pay deduction, and not some other form of discipline — for example, placing the offending officer on restricted duties — will have the necessary effect. Because the FLSA entrusts matters of judgment such as this to the Secretary, not the federal courts, we cannot say that the disciplinary deduction rule is invalid as applied to law enforcement personnel.The more fundamental objection respondents have to the disciplinary deduction rule is a procedural one: The Secretary has failed to give adequate consideration to whether it really makes sense to apply the rule to the public sector. Respondents' amici make the claim more specific: The Secretary's failure to revisit the rule in the wake of our Garcia decision was "arbitrary" and "capricious" in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A).It is certainly true that application of the disciplinary deduction rule to public sector employees raises distinct issues that may warrant the Secretary's formal consideration; this much is suggested by the veritable flood of post Garcia litigation against public employers in this area, see, e.g., Carpenter v. Denver, 82 F. 3d 353 (CA10 1996), cert. pending, No. 95-2088; Bankston v. Illinois, 60 F. 3d 1249 (CA7 1995); Shockley v. Newport News,997 F. 2d 18 (CA4 1993); Atlanta Professional Firefighters Union, Local 134 v. Atlanta, 920 F. 2d 800 (CA11 1991). But respondents' complaints about the failure to amend the disciplinary deduction rule cannot be raised in the first instance in the present suit. A court may certainly be asked by parties in respondents' position to disregard an agency regulation that is contrary to the substantive requirements of the law, or one that appears on the public record to have been issued in violation of procedural prerequisites, such as the "notice and comment" requirements of the APA, 5 U.S.C. § 553. But where, as here, the claim is not that the regulation is substantively unlawful, or even that it violates a clear procedural prerequisite, but rather that it was "arbitrary" and "capricious" not to conduct amendatory rulemaking (which might well have resulted in no change), there is no basis for the court to set aside the agency's action prior to any application for relief addressed to the agency itself. The proper procedure for pursuit of respondents' grievance is set forth explicitly in the APA: a petition to the agency for rulemaking, §553(e), denial of which must be justified by a statement of reasons, §555(e), and can be appealed to the courts, §§702, 706.A primary issue in the litigation unleashed by application of the salary basis test to public sector employees has been whether, under that test, an employee's pay is "subject to" disciplinary or other deductions whenever there exists a theoretical possibility of such deductions, or rather only when there is something more to suggest that the employee is actually vulnerable to having his pay reduced. Petitioners in effect argue for something close to the former view; they contend that because the Police Manual nominally subjects all department employees to a range of disciplinary sanctions thatincludes disciplinary deductions in pay, and because a single sergeant was actually subjected to a disciplinary deduction, they are "subject to" such deductions and hence nonexempt under the FLSA. 2 The Court of Appeals rejected petitioners' approach, saying that "[t]he mere possibility of an improper deduction in pay does not defeat an employee's salaried status" if no practice of making deductions exists. 65 F. 3d, at 710-711. In the Court of Appeals' view, a "one time incident" in which a disciplinary deduction is taken under "unique circumstances" does not defeat the salaried status of employees. Id., at 711. (In this case the sergeant in question, who had violated a residency rule, agreed to a reduction in pay as an alternative to termination of his employment.) The requirement of actual deductions was also imposed in an earlier ruling by the Eighth Circuit, McDonnell v. Omaha, 999 F. 2d 293, 296-297 (1993), cert. denied, , and in an Eleventh Circuit case, Atlanta Professional Firefighters Union, Local 134 v. Atlanta, supra, at 805. Other Circuits have rejected the requirement, Yourman v. Dinkins, 84 F. 3d 655, 656 (CA2 1996), cert. pending, No. 96-152; Carpenter v. Denver, supra, at 359-360; Bankston v. Illinois, supra, at 1253; Kinney v. District of Columbia, 994 F. 2d 6, 10-11 (CADC 1993); Abshire v. County of Kern, 908 F. 2d 483, 486-488 (CA9 1990), cert. denied, ; or else have imposed a requirement of actual deductions only in the face of vagueness or ambiguity in the governing policy, Michigan Assn. of Governmental Employees v. Michigan Dept. of Corrections, 992 F. 2d 82, 86 (CA6 1993).The Secretary of Labor, in an amicus brief filed at the request of the Court, interprets the salary basis test todeny exempt status when employees are covered by a policy that permits disciplinary or other deductions in pay "as a practical matter." That standard is met, the Secretary says, if there is either an actual practice of making such deductions or an employment policy that creates a "significant likelihood" of such deductions. The Secretary's approach rejects a wooden requirement of actual deductions, but in their absence it requires a clear and particularized policy — one which "effectively communicates" that deductions will be made in specified circumstances. This avoids the imposition of massive and unanticipated overtime liability (including the possibility of substantial liquidated damages, see, e.g., Kinney v. District of Columbia, supra, at 12) in situations in which a vague or broadly worded policy is nominally applicable to a whole range of personnel but is not "significantly likely" to be invoked against salaried employees.Because the salary basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless " `plainly erroneous or inconsistent with the regulation.' " Robertson v. Methow Valley Citizens Council, (quoting Bowles v. Seminole Rock & Sand Co., ). That deferential standard is easily met here. The critical phrase "subject to" comfortably bears the meaning the Secretary assigns. See American Heritage Dictionary 1788 (3d ed. 1992) (def. 2: defining "subject to" to mean "prone; disposed"; giving as an example "a child who is subject to colds"); Webster's New International Dictionary 2509 (2d ed. 1950) (def. 3: defining "subject to" to mean "[e]xposed; liable; prone; disposed"; giving as an example "a country subject to extreme heat").The Secretary's approach is usefully illustrated by reference to this case. The policy on which petitioners rely is contained in a section of the Police Manual that lists a total of 58 possible rule violations and specifies therange of penalties associated with each. All department employees are nominally covered by the manual, and some of the specified penalties involve disciplinary deductions in pay. Under the Secretary's view, that is not enough to render petitioners' pay "subject to" disciplinary deductions within the meaning of the salary basis test. This is so because the manual does not "effectively communicate" that pay deductions are an anticipated form of punishment for employees in petitioners' category, since it is perfectly possible to give full effect to every aspect of the manual without drawing any inference of that sort. If the statement of available penalties applied solely to petitioners, matters would be different; but since it applies both to petitioners and to employees who are unquestionably not paid on a salary basis, the expressed availability of disciplinary deductions may have reference only to the latter. No clear inference can be drawn as to the likelihood of a sanction's being applied to employees such as petitioners. Nor, under the Secretary's approach, is such a likelihood established by the one time deduction in a sergeant's pay, under unusual circumstances.Petitioners complain that the Secretary's interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this case, make it unworthy of deference. The Secretary's position is in no sense a "post hoc rationalizatio[n]" advanced by an agency seeking to defend past agency action against attack, Bowen v. Georgetown Univ. Hospital, . There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question. Petitioners also suggest that the Secretary's approach contravenes the rule that FLSA exemptions are to be "narrowly construed against ... employers" and are to be withheld except as to persons "plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc.,. But that is a rule governing judicial interpretation of statutes and regulations, not a limitation on the Secretary's power to resolve ambiguities in his own regulations. A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute.One small issue remains unresolved: the effect upon the exempt status of Sergeant Guzy, the officer who violated the residency requirement, of the one time reduction in his pay. The Secretary's regulations provide that if deductions which are inconsistent with the salary basis test — such as the deduction from Guzy's pay — are made in circumstances indicating that "there was no intention to pay the employee on a salary basis," the exemption from the FLSA is "[not] applicable to him during the entire period when such deductions were being made." 29 CFR § 541.118(a)(6) (1996). Conversely, "where a deduction not permitted by [the salary basis test] is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future." Ibid.Petitioners contend that the initial condition in the latter provision (which enables the employer to take corrective action) is not satisfied here because the deduction from Guzy's pay was not inadvertent. That it was not inadvertent is true enough, but the plain language of the regulation sets out "inadverten[ce]" and "made for reasons other than lack of work" as alternative grounds permitting corrective action. Petitioners also contend that the corrective provision is unavailable to respondents because Guzy has yet to be reimbursed for theresidency based deduction; in petitioners' view, reimbursement must be made immediately upon the discovery that an improper deduction was made. The language of the regulation, however, does not address the timing of reimbursement, and the Secretary's amicus brief informs us that he does not interpret it to require immediate payment. Respondents are entitled to preserve Guzy's exempt status by complying with the corrective provision in §541.118(a)(6).* * *Petitioners have argued, finally, that respondents failed to carry their affirmative burden of establishing petitioners' exempt status even under the Secretary's interpretation of the salary basis test. Since, however, that argument was inadequately preserved in the prior proceedings, we will not consider it here. See Adickes v. S. H. Kress & Co., , n. 2 (1970). The judgment of the Court of Appeals is affirmed.It is so ordered. |
7 | After petitioner James Smith, a county sheriff's deputy, responded to a call along with another officer, Murray Stapp, the latter returned to his patrol car and saw a motorcycle approaching at high speed, driven by Brian Willard, and carrying Philip Lewis, respondents' decedent, as a passenger. Stapp turned on his rotating lights, yelled for the cycle to stop, and pulled his car closer to Smith's in an attempt to pen the cycle in, but Willard maneuvered between the two cars and sped off. Smith immediately switched on his own emergency lights and siren and began high-speed pursuit. The chase ended after the cycle tipped over. Smith slammed on his brakes, but his car skidded into Lewis, causing massive injuries and death. Respondents brought this action under 42 U.S.C. § 1983 alleging a deprivation of Lewis's Fourteenth Amendment substantive due process right to life. The District Court granted summary judgment for Smith, but the Ninth Circuit reversed, holding, inter alia, that the appropriate degree of fault for substantive due process liability for high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security.Held: A police officer does not violate substantive due process by causing death through deliberate or reckless indifference to life in a highspeed automobile chase aimed at apprehending a suspected offender. Pp. 5-21.(a) The "more-specific-provision" rule of Graham v. Connor, , does not bar respondents' suit. Graham simply requires that if a constitutional claim is covered by a specific constitu tional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under substantive due process. E.g., United States v. Lanier ___, ___, n. 7. Substantive due process analysis is therefore inappropriate here only if, as amici argue, respondents' claim is "covered by" the Fourth Amendment. It is not. That Amendment covers only "searches and seizures," neither of which took place here. No one suggests that there was a search, and this Court's cases foreclose finding a seizure, since Smith did not terminate Lewis's freedom of movement through means intentionally applied. E.g., Brower v. County of Inyo, . Pp. 7-10.(b) Respondents' allegations are insufficient to state a substantive due process violation. Protection against governmental arbitrariness is the core of due process, e.g., Hurtado v. California, , including substantive due process, see, e.g. , Daniels v. Williams, , but only the most egregious executive action can be said to be "arbitrary" in the constitutional sense, e.g., Collins v. Harker Heights, ; the cognizable level of executive abuse of power is that which shocks the conscience, e.g., id., at 128; Rochin v. California, . The conscience-shocking concept points clearly away from liability, or clearly toward it, only at the ends of the tort law's culpability spectrum: Liability for negligently inflicted harm is categorically beneath the constitutional due process threshold, see, e.g., Daniels v. Williams, 474 U.S., at 328, while conduct deliberately intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level, see id., at 331. Whether that level is reached when culpability falls between negligence and intentional conduct is a matter for closer calls. The Court has recognized that deliberate indifference is egregious enough to state a substantive due process claim in one context, that of deliberate indifference to the medical needs of pretrial detainees, see City of Revere v. Massachusetts Gen. Hospital, ; cf. Estelle v. Gamble, , but rules of due process are not subject to mechanical application in unfamiliar territory, and the need to preserve the constitutional proportions of substantive due process demands an exact analysis of context and circumstances before deliberate indifference is condemned as conscience-shocking, cf. Betts v. Brady, . Attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one context is less egregious in the other. In the circumstances of a high-speed chase aimed at apprehending a suspected offender, where unforeseen circumstances demand an instant judgment on the part of an officer who feels the pulls of competing obligations, only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the shocks-theconscience test. Such chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to substantive due process liability. Cf. Whitley v. Albers, . The fault claimed on Smith's part fails to meet this test. Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high-speed driving in the first place, nothing to excuse his flouting of the commonly understood police authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed. Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response. While prudence would have repressed the reaction, Smith's instinct was to do his job, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive. Pp. 10-21.98 F. 3d 434, reversed.SOUTER , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and O'CONNOR , KENNEDY , GINSBURG , and BREYER , JJ., joined. REHNQUIST , C. J., filed a concurring opinion. KENNEDY , J., filed a concurring opinion, in which O'CONNOR , J., joined. BREYER , J., filed a concurring opinion. STEVENS , J., filed an opinion concurring in the judgment. SCALIA , J., filed an opinion concurring in the judgment, in which THOMAS , J., joined. NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]JUSTICE SOUTER delivered the opinion of the Court.The issue in this case is whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender. We answer no, and hold that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation. IOn May 22, 1990, at approximately 8:30 p.m., petitioner James Everett Smith, a Sacramento County sheriff's deputy, along with another officer, Murray Stapp, responded to a call to break up a fight. Upon returning to his patrol car, Stapp saw a motorcycle approaching at high speed. It was operated by 18-year-old Brian Willard and carried Philip Lewis, respondents' 16-year-old decedent, as a pas senger. Neither boy had anything to do with the fight that prompted the call to the police.Stapp turned on his overhead rotating lights, yelled to the boys to stop, and pulled his patrol car closer to Smith's, attempting to pen the motorcycle in. Instead of pulling over in response to Stapp's warning lights and commands, Willard slowly maneuvered the cycle between the two police cars and sped off. Smith immediately switched on his own emergency lights and siren, made a quick turn, and began pursuit at high speed. For 75 seconds over a course of 1.3 miles in a residential neighborhood, the motorcycle wove in and out of oncoming traffic, forcing two cars and a bicycle to swerve off of the road. The motorcycle and patrol car reached speeds up to 100 miles an hour, with Smith following at a distance as short as 100 feet; at that speed, his car would have required 650 feet to stop.The chase ended after the motorcycle tipped over as Willard tried a sharp left turn. By the time Smith slammed on his brakes, Willard was out of the way, but Lewis was not. The patrol car skidded into him at 40 miles an hour, propelling him some 70 feet down the road and inflicting massive injuries. Lewis was pronounced dead at the scene.Respondents, Philip Lewis's parents and the representatives of his estate, brought this action under Rev. Stat. §1979, 42 U.S.C. § 1983 against petitioners Sacramento County, the Sacramento County Sheriff's Department and Deputy Smith, alleging a deprivation of Philip Lewis's Fourteenth Amendment substantive due process right to life. 1The District Court granted summary judgment for Smith, reasoning that even if he violated the Constitution, he was entitled to qualified immunity, because respondents could point to no "state or federal opinion published before May, 1990, when the alleged misconduct took place, that supports [their] view that [the decedent had] a Fourteenth Amendment substantive due process right in the context of high speed police pursuits." App. to Pet. for Cert. 52. 2The Court of Appeals for the Ninth Circuit reversed, holding that "the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security," 98 F. 3d 434, 441 (1996), and concluding that "the law regarding police liability for death or injury caused by an officer during the course of a high-speed chase was clearly established" at the time of Philip Lewis's death, id. , at 445. Since Smith apparently disregarded the Sacramento County Sheriff's Department's General Order on police pursuits, the Ninth Circuit found a genuine issue of material fact that might be resolved by a finding that Smith's conduct amounted to deliberate indifference:"The General Order requires an officer to communicate his intention to pursue a vehicle to the sheriff's department dispatch center. But defendants concede that Smith did not contact the dispatch center. The General Order requires an officer to consider whether the seriousness of the offense warrants a chase at speeds in excess of the posted limit. But here, the only apparent 'offense' was the boys' refusal to stop when another officer told them to do so. The General Order requires an officer to consider whether the need for apprehension justifies the pursuit under existing conditions. Yet Smith apparently only 'needed' to apprehend the boys because they refused to stop. The General Order requires an officer to consider whether the pursuit presents unreasonable hazards to life and property. But taking the facts here in the light most favorable to plaintiffs, there existed an unreasonable hazard to Lewis's and Willard's lives. The General Order also directs an officer to discontinue a pursuit when the hazards of continuing outweigh the benefits of immediate apprehension. But here, there was no apparent danger involved in permitting the boys to escape. There certainly was risk of harm to others in continuing the pursuit."Id., at 442.Accordingly, the Court of Appeals reversed the summary judgment in favor of Smith and remanded for trial.We granted certiorari___ (1997), to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case. Compare 98 F. 3d, at 441 ("deliberate indifference" or "reckless disregard"), 3with Evans v. Avery , 100 F. 3d 1033, 1038 (CA1 1996) ("shocks the conscience"), cert. denied___ (1997), Williams v . Denver , 99 F. 3d 1009, 10141015 (CA10 1996) (same), Fagan v. Vineland , 22 F. 3d 1296, 1306-1307 (CA3 1994) (en banc) (same), Temkin v. Frederick County Commissioners , 945 F. 2d 716, 720 (CA4 1991) (same), cert. denied, , and Checki v. Webb , 785 F. 2d 534, 538 (CA5 1986) (same). We now reverse. IIOur prior cases have held the provision that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law," U. S. Const., Amdt. 14, §1, to "guarante[e] more than fair process," Washington v. Glucksberg ___, ___ (1997) (slip op., at 15), and to cover a substantive sphere as well, "barring certain government actions regardless of the fairness of the procedures used to implement them," Daniels v. Williams, ; see also Zinermon v. Burch, (noting that substantive due process violations are actionable under §1983). The allegation here that Lewis was deprived of his right to life in violation of substantive due process amounts to a such claim, that under the circumstances described earlier, Smith's actions in causing Lewis's death were an abuse of executive power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the Fourteenth Amendment. Cf. Collins v. Harker Heights, (noting that the Due Process Clause was intended to prevent government officials " 'from abusing [their] power, or employing it as an instrument of oppression' ") (quoting DeShaney v. Winnebago County Dept. of Social Servs., (quoting Davidson v. Cannon, ). 4Leaving aside the question of qualified immunity, which formed the basis for the District Court's dismissal of their case, 5respondents face two principal objections to their claim. The first is that its subject is necessarily governed by a more definite provision of the Constitution (to the exclusion of any possible application of substantive due process); the second, that in any event the allegations are insufficient to state a substantive due process violation through executive abuse of power. Respondents can meet the first objection, but not the second. ABecause we have "always been reluctant to expand the concept of substantive due process," Collins v. Harker Heights, supra , at 125, we held in Graham v. Connor that "[w]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver, (plurality opinion of REHNQUIST , C. J.) (quoting Graham v. Connor, ) (internal quotation marks omitted). Given the rule in Graham, we were presented at oral argument with the threshold issue raised in several amicus briefs, 6whether facts involving a police chase aimed at apprehending suspects can ever support a due process claim. The argument runs that in chasing the motorcycle, Smith was attempting to make a seizure within the meaning of the Fourth Amendment, and, perhaps, even that he succeeded when Lewis was stopped by the fatal collision. Hence, any liability must turn on an application of the reasonableness standard governing searches and seizures, not the due process standard of liability for constitutionally arbitrary executive action. See Graham v. Connor, supra , at 395 (" all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach"); Albright v. Oliver, 510 U.S., at 276 (GINSBURG , J., concurring); id. , at 288, n. 2 (SOUTER , J., concurring in judgment). One Court of Appeals has indeed applied the rule of Graham to preclude the application of principles of generalized substantive due process to a motor vehicle passenger's claims for injury resulting from reckless police pursuit. See Mays v. East St. Louis , 123 F. 3d 999, 10021003 (CA7 1997).The argument is unsound. Just last Term, we explained that Graham"does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitu- tional claim is covered by a specific constitutional pro- vision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropri- ate to that specific provision, not under the rubric of substantive due process." United States v. Lanier ___ , ___ ,n. 7, (1997) (slip op., at 13). Substantive due process analysis is therefore inappropriate in this case only if respondents' claim is "covered by" the Fourth Amendment. It is not. The Fourth Amendment covers only "searches and seizures," U. S. Const., Amdt. 4, neither of which took place here. No one suggests that there was a search, and our cases foreclose finding a seizure. We held in California v. Hodari D., , that a police pursuit in attempting to seize a person does not amount to a "seizure" within the meaning of the Fourth Amendment. And in Brower v. County of Inyo, , we explained "that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied ." We illustrated the point by saying that no Fourth Amendment seizure would take place where a "pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit," but accidentally stopped the suspect by crashing into him. Id. , at 597. That is exactly this case. See, e.g. , Campbell v. White , 916 F. 2d 421, 423 (CA7 1990) (following Brower and finding no seizure where a police officer accidentally struck and killed a fleeing motorcyclist during a high-speed pursuit), cert. denied, . Graham 's more-specificprovision rule is therefore no bar to respondents' suit. See, e.g. , Frye v. Akron , 759 F. Supp. 1320, 1324 (ND Ind. 1991) (parents of a motorcyclist who was struck and killed by a police car during a high-speed pursuit could sue under substantive due process because no Fourth Amendment seizure took place); Evans v. Avery , 100 F. 3d, at 1036 (noting that "outside the context of a seizure, ... a person injured as a result of police misconduct may prosecute a substantive due process claim under section 1983"); Pleasant v. Zamieski , 895 F. 2d 272, 276, n. 2 (CA6) (noting that Graham "preserve[s] fourteenth amendment substantive due process analysis for those instances in which a free citizen is denied his or her constitutional right to life through means other than a law enforcement official's arrest, investigatory stop or other seizure"), cert. denied, . 7 B Since the time of our early explanations of due process, we have understood the core of the concept to be protection against arbitrary action:"The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 235-244 [(1819)]: 'As to the words from Magna Charta, incorporated into the Constitution of Mary- land, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to se- cure the individual from the arbitrary exercise of the powers of government, unrestrained by the estab- lished principles of private right and distributive jus- tice.' " Hurtado v. California, . We have emphasized time and again that "[t]he touchstone of due process is protection of the individual against arbitrary action of government," Wolff v. McDonnell, , whether the fault lies in a denial of fundamental procedural fairness, see, e.g. , Fuentes v. Shevin, (the procedural due process guarantee protects against "arbitrary takings"), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g. , Daniels v. Williams , 474 U.S., at 331 (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised). While due process protection in the substantive sense limits what the government may do in both its legislative, see, e.g. , Griswold v. Connecticut, , and its executive capacities, see, e.g. , Rochin v. California, , criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue. Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be "arbitrary in the constitutional sense," Collins v. Harker Heights, 503 U.S., at 129, thereby recognizing the point made in different circumstances by Chief Justice Marshall, " 'that it is a constitution we are expounding,' " Daniels v. Williams , supra , at 332 (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials " 'from abusing [their] power, or employing it as an instrument of oppression.' " 503 U.S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 196 (quoting Davidson v. Cannon , 474 U.S., at 348)). To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect's stomach enough to offend due process as conduct "that shocks the conscience" and violates the "decencies of civilized conduct." In the intervening years we have repeatedly adhered to Rochin 's benchmark. See, e.g. , Breithaupt v. Abram, (reiterating that conduct that " 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency" would violate substantive due process); Whitley v. Albers, (same); United States v. Salerno, ("So-called 'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' ... or interferes with rights 'implicit in the concept of ordered liberty' ") (quoting Rochin v. California , supra , at 172, and Palko v. Connecticut , ). Most recently, in Collins v. Harker Heights, supra , at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it "can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, "poin[t] the way." Johnson v. Glick , 481 F. 2d 1028, 1033 (CA2), cert. denied, . 8 It should not be surprising that the constitutional concept of conscience-shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. Thus, we have made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. In Paul v. Davis, , for example, we explained that the Fourteenth Amendment is not a "font of tort law to be superimposed upon whatever systems may already be administered by the States," and in Daniels v. Williams, 474 U.S., at 332, we reaffirmed the point that "[o]ur Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. See Daniels v. Williams, supra , at 328; see also Davidson v. Cannon, (clarifying that Daniels applies to substantive, as well as procedural, due process). It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams , 474 U.S., at 331 ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property") (emphasis in original). Whether the point of the conscience-shocking is reached when injuries are produced with culpability falling within the middle range, following from something more than negligence but "less than intentional conduct, such as recklessness or 'gross negligence,' " id. , at 334, n. 3, is a matter for closer calls. 9 To be sure, we have expressly recognized the possibility that some official acts in this range may be actionable under the Fourteenth Amendment, ibid. , and our cases have compelled recognition that such conduct is egregious enough to state a substantive due process claim in at least one instance. We held in City of Revere v. Massachusetts Gen. Hospital, , that "the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner." Id., at 244 (citing Bell v. Wolfish, , n. 16, 545 (1979)). Since it may suffice for Eighth Amendment liability that prison officials were deliberately indifferent to the medical needs of their prisoners, see Estelle v. Gamble, , it follows that such deliberately indifferent conduct must also be enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial, see, e.g. , Barrie v. Grand County, Utah , 119 F. 3d 862, 867 (CA10 1997); Weyant v. Okst , 101 F. 3d 845, 856 (CA2 1996). 10 Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience-shocking. What we have said of due process in the procedural sense is just as true here:"The phrase [due process of law] formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial." Betts v. Brady, . Thus, attention to the markedly different circumstances of normal pretrial custody and high-speed law enforcement chases shows why the deliberate indifference that shocks in the one case is less egregious in the other (even assuming that it makes sense to speak of indifference as deliberate in the case of sudden pursuit). As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U.S., at 320, 11 and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare."[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs- e.g. , food, clothing, shelter, medical care, and reasonable safety -it transgresses the substantive limits on state action set by the ... Due Process Clause." DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S., at 199-200 (citation and footnote omitted). Nor does any substantial countervailing interest excuse the State from making provision for the decent care and protection of those it locks up; "the State's responsibility to attend to the medical needs of prisoners [or detainees] does not ordinarily clash with other equally important governmental responsibilities." Whitley v. Albers, supra , at 320. 12 But just as the description of the custodial prison situation shows how deliberate indifference can rise to a constitutionally shocking level, so too does it suggest why indifference may well not be enough for liability in the different circumstances of a case like this one. We have, indeed, found that deliberate indifference does not suffice for constitutional liability (albeit under the Eighth Amendment) even in prison circumstances when a prisoner's claim arises not from normal custody but from response to a violent disturbance. Our analysis is instructive here:"[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used... . In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance." Whitley v. Albers , 475 U.S., at 320. We accordingly held that a much higher standard of fault than deliberate indifference has to be shown for officer liability in a prison riot. In those circumstances, liability should turn on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. , at 320-321 (internal quotation marks omitted). The analogy to sudden police chases (under the Due Process Clause) would be hard to avoid. Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made "in haste, under pressure, and frequently without the luxury of a second chance." Id. , at 320; cf. Graham v. Connor , 490 U.S., at 397 ("police officers are often forced to make split-second judgmentsin circumstances that are tense, uncertain, and rapidly evolving"). A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to everyone within stopping range, be they suspects, their passengers, other drivers, or bystanders. To recognize a substantive due process violation in these circumstances when only mid-level fault has been shown would be to forget that liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates "the large concerns of the governors and the governed." Daniels v. Williams , 474 U.S., at 332. Just as a purpose to cause harm is needed for Eighth Amendment liability in a riot case, so it ought to be needed for Due Process liability in a pursuit case. Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under §1983. 13 The fault claimed on Smith's part in this case accordingly fails to meet the shocks-the-conscience test. In the count charging him with liability under §1983, respondents' complaint alleges a variety of culpable states of mind: "negligently responsible in some manner," (App. 11, Count one, #2668), "reckless and careless" ( id., at 12, #26615), "recklessness, gross negligence and conscious disregard for [Lewis's] safety" ( id., at 13, #26618), and "oppression, fraud and malice" (Ibid.) The subsequent summary judgment proceedings revealed that the height of the fault actually claimed was "conscious disregard," the malice allegation having been made in aid of a request for punitive damages, but unsupported either in allegations of specific conduct or in any affidavit of fact offered on the motions for summary judgment. The Court of Appeals understood the claim to be one of deliberate indifference to Lewis's survival, which it treated as equivalent to one of reckless disregard for life. We agree with this reading of respondents' allegations, but consequently part company from the Court of Appeals, which found them sufficient to state a substantive due process claim, and from the District Court, which made the same assumption arguendo . 14 Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard's high-speed driving in the first place, nothing to excuse his flouting of the commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed forcing other drivers out of their travel lanes. Willard's outrageous behavior was practically instantaneous, and so was Smith's instinctive response. While prudence would have repressed the reaction, the officer's instinct was to do his job as a law enforcement officer, not to induce Willard's lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part. Regardless whether Smith's behavior offended the reasonableness held up by tort law or the balance struck in law enforcement's own codes of sound practice, it does not shock the conscience, and petitioners are not called upon to answer for it under §1983. The judgment below is accordingly reversed. It is so ordered. ----- judges interpreting the basic charter of Government for the entire coun- try"). Cf. Thomas v. City of Richmond , 9 Cal. 4th 1154, 892 P. 2d 1185 (1995) (en banc) (discussing municipal liability under California law for injuries caused by police pursuits). Notes 1 Respondents also brought claims under state law. The District Court found that Smith was immune from state tort liability by operation of California Vehicle Code §17004, which provides that "[a] public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle ... when in the immediate pursuit of an actual or suspected violator of the law." Cal. Veh. Code Ann. §17004 (West 1971). The court declined to rule on the potential liability of the County under state law, instead dismissing the tort claims against the County without prejudice to refiling in state court. 2 The District Court also granted summary judgment in favor of the County and the Sheriff's Department on the §1983 claim, concluding that municipal liability would not lie under Monell v. New York City Dept. of Social Servs., , after finding no genuine factual dispute as to whether the County adequately trains its officers in the conduct of vehicular pursuits or whether the pursuit policy of the Sheriff's Department evinces deliberate indifference to the constitutional rights of the public. The Ninth Circuit affirmed the District Court on these points, 98 F. 3d 434, 446-447 (1996) and the issue of municipal liability is not before us. 3 In Jones v. Sherrill , 827 F. 2d 1102, 1106 (1987), the Sixth Circuit adopted a "gross negligence" standard for imposing liability for harm caused by police pursuit. Subsequently, in Foy v. Berea , 58 F. 3d 227, 230 (1995), the Sixth Circuit, without specifically mentioning Jones , disavowed the notion that "gross negligence is sufficient to support a substantive due process claim." Although Foy involved police inaction, rather than police pursuit, it seems likely that the Sixth Circuit would now apply the "deliberate indifference" standard utilized in that case, see 58 F. 3d, at 232-233, rather than the "gross negligence" standard adopted in Jones , in a police pursuit situation. 4 Respondents do not argue that they were denied due process of law by virtue of the fact that California's post-deprivation procedures and rules of immunity have effectively denied them an adequate opportunity to seek compensation for the state-occasioned deprivation of their son's life. We express no opinion here on the merits of such a claim, cf. Albright v. Oliver, (KENNEDY, J., concurring in judgment); Parratt v. Taylor, , or on the adequacy of California's post-deprivation compensation scheme. 5 As in any action under §1983, the first step is to identify the exact contours of the underlying right said to have been violated. See Graham v. Connor, . The District Court granted summary judgment to Smith on the basis of qualified immunity, assuming without deciding that a substantive due process violation took place but holding that the law was not clearly established in 1990 so as to justify imposition of §1983 liability. We do not analyze this case in a similar fashion because, as we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question. See Siegert v. Gilley, ("A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all," and courts should not "assum[e], without deciding, this preliminary issue"). JUSTICE STEVENS suggests that the rule of Siegert should not apply where, as here, the constitutional question presented "is both difficult and unresolved." Post, at 1. But the generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional. In practical terms, escape from uncertainty would require the issue to arise in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding; in none of these instances would qualified immunity be available to block a determination of law. See Shapiro, Public Officials' Qualified Immunity in Section 1983 Actions Under Harlow v. Fitzgerald and its Progeny, 22 U. Mich. J. L. Ref. 249, 265, n. 109 (1989). But these avenues would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity. 6 See Brief for National Association of Counties et al. as Amici Curiae 8-13; Brief for Grand Lodge of the Fraternal Order of Police as Amicus Curiae 4-9; Brief for City and County of Denver, Colorado as Amici Curiae 2-7; Brief for County of Riverside et al. as Amici Curiae 6-18; Brief for Gabriel Torres et al. as Amici Curiae 3-11. 7 Several amici suggest that, for the purposes of Graham , the Fourth Amendment should cover not only seizures, but also failed attempts to make a seizure. See, e.g. , Brief for National Association of Counties et al. as Amici Curiae 10-11. This argument is foreclosed by California v. Hodari D. , in which we explained that "neither usage nor common-law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions." , n. 2, (1991). Attempted seizures of a person are beyond the scope of the Fourth Amendment. See id. , at 646 (STEVENS, J., dissenting) (disagreeing with the Court's position that "an attempt to make [a] ... seizure is beyond the coverage of the Fourth Amendment"). 8 As JUSTICE SCALIA has explained before, he fails to see "the usefulness of 'conscience shocking' as a legal test," Herrera v. Collins, , and his independent analysis of this case is therefore understandable. He is, however, simply mistaken in seeing our insistence on the shocks-the-conscience standard as an atavistic return to a scheme of due process analysis rejected by the Court in Washington v. Glucksberg S. ___ (1997). Glucksberg presented a disagreement about the significance of historical examples of protected liberty in determining whether a given statute could be judged to contravene the Fourteenth Amendment. The differences of opinion turned on the issues of how much history indicating recognition of the asserted right, viewed at what level of specificity, is necessary to support the finding of a substantive due process right entitled to prevail over state legislation. As we explain in the text, a case challenging executive action on substantive due process grounds, like this one, presents an issue antecedent to any question about the need for historical examples of enforcing a liberty interest of the sort claimed. For executive action challenges raise a particular need to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law. Thus, in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them. Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways. In none of our prior cases have we considered the necessity for such examples, and no such question is raised in this case. In sum, the difference of opinion in Glucksberg was about the need for historical examples of recognition of the claimed liberty protection at some appropriate level of specificity. In an executive action case, no such issue can arise if the conduct does not reach the degree of the egregious. 9 In Rochin v. California , , the case in which we formulated and first applied the shocks-the-conscience test, it was not the ultimate purpose of the government actors to harm the plaintiff, but they apparently acted with full appreciation of what the Court described as the brutality of their acts. Rochin , of course, was decided long before Graham v. Connor (and Mapp v. Ohio, ), and today would be treated under the Fourth Amendment, albeit with the same result. 10 We have also employed deliberate indifference as a standard of culpability sufficient to identify a dereliction as reflective of municipal policy and to sustain a claim of municipal liability for failure to train an employee who causes harm by unconstitutional conduct for which he would be individually liable. See Canton v. Harris, . 11 By "actual deliberation," we do not mean "deliberation" in the narrow, technical sense in which it has sometimes been used in traditional homicide law. See, e.g. Caldwell v. State , 84 So. 272, 276 (Ala. 1919) (noting that " 'deliberation here does not mean that the man slayer must ponder over the killing for a long time' "; rather, "it may exist and may be entertained while the man slayer is pressing the trigger of the pistol that fired the fatal shot[,] even if it be only for a moment or instant of time"). 12 Youngberg v. Romeo, , can be categorized on much the same terms. There, we held that a severely retarded person could state a claim under §1983 for a violation of substantive due process if the personnel at the mental institution where he was confined failed to exercise professional judgment when denying him training and habilitation. Id., at 319-325. The combination of a patient's involuntary commitment and his total dependence on his custodians obliges the government to take thought and make reasonable provision for the patient's welfare. 13 Cf. Checki v. Webb , 785 F. 2d 534, 538 (CA5 1986) ("Where a citizen suffers physical injury due to a police officer's negligent use of his vehicle, no section 1983 claim is stated. It is a different story when a citizen suffers or is seriously threatened with physical injury due to a police officer's intentional misuse of his vehicle") (citation omitted). 14 To say that due process is not offended by the police conduct described here is not, of course, to imply anything about its appropriate treatment under state law. See Collins v. Harker Heights , (decisions about civil liability standards that "involve a host of policy choices . . must be made by locally elected representatives [or by courts enforcing the common law of torts], rather than by federal U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]CHIEF JUSTICE REHNQUIST , concurring.I join the opinion of the Court in this case. The first question presented in the County's petition for certiorari is:"Whether, in a police pursuit case, the legal standard of conduct necessary to establish a violation of substantive due process under the Fourteenth Amendment is 'shocks the conscience'...or 'deliberate indifference' or 'reckless disregard.' "Pet. for Cert. i.The County's petition assumed that the constitutional question was one of substantive due process, and the parties briefed the question on that assumption. The assumption was surely not without foundation in our case law, as the Court makes clear. Ante , at 12-13. The Court is correct in concluding that "shocks the conscience" is the right choice among the alternatives posed in the question presented, and correct in concluding that this demanding standard has not been met here. U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]JUSTICE KENNEDY , with whom JUSTICE O'CONNOR joins, concurring.I join the opinion of the Court, and write this explanation of the objective character of our substantive due process analysis.The Court is correct, of course, in repeating that the prohibition against deprivations of life, liberty, or property contained in the Due Process Clause of the Fourteenth Amendment extends beyond the command of fair procedures. It can no longer be controverted that due process has a substantive component as well. See, e.g., Washington v. Glucksberg___ (1997); Planned Parenthood of Southeastern Pa. v. Casey, ; Collins v. Harker Heights, ; Michael H. v. Gerald D., . As a consequence, certain actions are prohibited no matter what procedures attend them. In the case before us, there can be no question that an interest protected by the text of the Constitution is implicated: The actions of the State were part of a causal chain resulting in the undoubted loss of life. We have no definitional problem, then, in determining whether there is an interest sufficient to invoke due proc ess. Cf. Ohio Adult Parole Authority v. Woodard___ (1998) .What we do confront is the question of the standard of conduct the Constitution requires the State, in this case the local police, to follow to protect against the unintentional taking of life in the circumstances of a police pursuit. Unlike the separate question whether or not, given the fact of a constitutional violation, the state entity is liable for damages, see Monell v. New York City Dept. of Social Servs., ; Canton v. Harris, , which is a matter of statutory interpretation or elaboration, the question here is the distinct, anterior issue whether or not a constitutional violation occurred at all. See Collins v. Harker Heights, supra , at 120, 124.The Court decides this case by applying the "shocks the conscience" test first recognized in Rochin v. California, , and reiterated in subsequent decisions. The phrase has the unfortunate connotation of a standard laden with subjective assessments. In that respect, it must be viewed with considerable skepticism. As our opinion in Collins v. Harker Heights illustrates, however, the test can be used to mark the beginning point in asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning. 503 U.S., at 126-128. As JUSTICE SCALIA is correct to point out, we so interpreted the test in Glucksberg. Post, at 1-2. In the instant case, the authorities cited by JUSTICE SCALIA are persuasive, indicating that we would contradict our traditions were we to sustain the claims of the respondents.That said, it must be added that history and tradition are the starting point, but not in all cases the ending point of the substantive due process inquiry. There is room as well for an objective assessment of the necessities of law enforcement, in which the police must be given substantial latitude and discretion, acknowledging, of course, the primacy of the interest in life which the State, by the Fourteenth Amendment, is bound to respect. I agree with the Court's assessment of the State's interests in this regard. Absent intent to injure, the police, in circumstances such as these, may conduct a dangerous chase of a suspect who disobeys a lawful command to stop when they determine it is appropriate to do so. There is a real danger in announcing a rule, or suggesting a principle, that in some cases a suspect is free to ignore a lawful police command to stop. No matter how narrow its formulation, any suggestion that suspects may ignore a lawful command to stop and then sue for damages sustained in an ensuing chase might cause suspects to flee more often, increasing accidents of the kind which occurred here.Though I share JUSTICE SCALIA 's concerns about using the phrase "shocks the conscience" in a manner suggesting that it is a self-defining test, the reasons the Court gives in support of its judgment go far toward establishing that objective considerations, including history and precedent, are the controlling principle, regardless of whether the State's action is legislative or executive in character. To decide this case, we need not attempt a comprehensive definition of the level of causal participation which renders a State or its officers liable for violating the substantive commands of the Fourteenth Amendment. It suffices to conclude that neither our legal traditions nor the present needs of law enforcement justify finding a due process violation when unintended injuries occur after the police pursue a suspect who disobeys their lawful order to stop. U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]JUSTICE BREYER , concurring.I join the Court's judgment and opinion. I write separately only to point out my agreement with JUSTICE STEVENS , ante , at 1, that Siegert v. Gilley , , should not be read to deny lower courts the flexibility, in appropriate cases, to decide §1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented. See Siegert , supra , at 235 (KENNEDY , J., concurring) (Lower court "adopted the altogether normal procedure of deciding the case before it on the ground that appeared to offer the most direct and appropriate resolution, and one argued by the parties"). U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]JUSTICE STEVENS , concurring in the judgment.When defendants in a §1983 action argue in the alternative (a) that they did not violate the Constitution, and (b) that in any event they are entitled to qualified immunity because the constitutional right was not clearly established, the opinion in Siegert v. Gilley , , tells us that we should address the constitutional question at the outset. That is sound advice when the answer to the constitutional question is clear. When, however, the question is both difficult and unresolved, I believe it wiser to adhere to the policy of avoiding the unnecessary adjudication of constitutional questions. Because I consider this such a case, I would reinstate the judgment of the District Court on the ground that the relevant law was not clearly defined in 1990.The Court expresses concern that deciding the immunity issue without resolving the underlying constitutional question would perpetuate a state of uncertainty in the law. Ante , at 7 n. 5. Yet the Court acknowledges, as it must, that a qualified immunity defense is unavailable in an action against the municipality itself. Id. Sound reasons exist for encouraging the development of new consti tutional doctrines in adversarial suits against municipalities, which have a substantial stake in the outcome and a risk of exposure to damages liability even when individual officers are plainly protected by qualified immunity.In sum, I would hold that Officer Smith is entitled to qualified immunity. Accordingly, I concur in the Court's judgment, but I do not join its opinion. U.S. Supreme Court No. 96-1337 COUNTY OF SACRAMENTO, ET AL ., PETITIONERS v. TERI LEWIS ANDTHOMAS LEWIS, PERSONAL REPRESENTATIVE OF THE ESTATE OF PHILIP LEWIS, DECEASED ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[May 26, 1998]JUSTICE SCALIA , with whom JUSTICE THOMAS joins, concurring in the judgment.Today's opinion gives the lie to those cynics who claim that changes in this Court's jurisprudence are attributable to changes in the Court's membership. It proves that the changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim, "That was then, this is now."Just last Term, in Washington v. Glucksberg ___ , ___ (1997) (slip op., at 15-19), the Court specifically rejected the method of substantive-due-process analysis employed by JUSTICE SOUTER in his concurrence in that case, which is the very same method employed by JUSTICE SOUTER in his opinion for the Court today. To quote the opinion in Glucksberg:"Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition,'... and 'implicit in the concept of ordered liberty' ... . Second, we have required in substantive-due-process cases a 'careful description' of the asserted fundamental liberty interest... . Our Nation's history, legal traditions, and practices thus provide the crucial 'guideposts for responsible decisionmaking,'... that direct and restrain our exposition of the Due Process Clause... . "JUSTICE SOUTER ... would largely abandon this restrained methodology, and instead ask 'whether [Washington's] statute sets up one of those "arbitrary impositions"S 666 666 ( or "purposeless restraints the Due Process Clause ... . In our view, however, the development of this Court's substantive-due-process jurisprudence ... has been a process whereby the outlines of the 'liberty' specially protected by theFourteenth Amendment ... have at least been carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition. This approach tends to rein in the subjective elements that are necessarily present in dueprocess judicial review." Id., at ___ (slip op., at 1617). Today, so to speak, the stone that the builders had rejected has become the foundation-stone of our substantivedue-process jurisprudence. The atavistic methodology that JUSTICE SOUTER announces for the Court is the very same methodology that the Court called atavistic when it was proffered by JUSTICE SOUTER in Glucksberg . In fact, if anything, today's opinion is even more of a throw-back to highly subjective substantive-due-process methodologies than the concurrence in Glucksberg was. Whereas the latter said merely that substantive due process prevents "arbitrary impositions" and "purposeless restraints" (without any objective criterion as to what is arbitrary or purposeless), today's opinion resuscitates the ne plus ultra , the Napoleon Brandy, the Mahatma Ghandi, the Ce lophane 1of subjectivity, th' ol' "shocks-the-conscience" test. According to today's opinion, this is the measure of arbitrariness when what is at issue is executive rather than legislative action. Ante , at 12. 2Glucksberg , of course, rejected "shocks-the-conscience," just as it rejected the less subjective "arbitrary action" test. A 1992 executive-action case, Collins v. Harker Heights, , which had paid lip-service to "shocks-the-conscience," see id., at 128, was cited in Glucksberg for the proposition that "[o]ur Nation's history, legal traditions, and practices ... provide the crucial 'guideposts for responsible decisionmaking.' " Glucksberg, supra, ___ (slip op., at 16), quoting Collins, supra, at 125. In fact, even before Glucksberg we had characterized the last "shocks-the-conscience" claim to come before us as "nothing more than [a] bald assertio[n]," and had rejected it on the objective ground that the petitioner "failed to proffer any historical, textual, or controlling precedential support for [his alleged due process right], and we decline to fashion a new due process right out of thin air." Carlisle v. United States, . Adhering to our decision in Glucksberg , rather than ask whether the police conduct here at issue shocks my unelected conscience, I would ask whether our Nation has traditionally protected the right respondents assert. The first step of our analysis, of course, must be a "careful description" of the right asserted, Glucksberg , 521 U. S., at ___ (slip op., at 16). Here the complaint alleges that the police officer deprived Lewis "of his Fourteenth Amendment right to life, liberty and property without due process of law when he operated his vehicle with recklessness, gross negligence and conscious disregard for his safety." App. 13. I agree with the Court's conclusion that this asserts a substantive right to be free from "deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender." Ante , at 1; see also ante , at 19.Respondents provide no textual or historical support for this alleged due process right, and, as in Carlisle , I would "decline to fashion a new due process right out of thin air." 517 U.S., at 429. Nor have respondents identified any precedential support. Indeed, precedent is to the contrary: "Historically, th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams, (citations omitted); Collins, supra, at 127, n. 10 (same). Though it is true, as the Court explains, that "deliberate indifference" to the medical needs of pretrial detainees, City of Revere v. Massachusetts Gen. Hospital, , or of involuntarily committed mental patients, Youngberg v. Romeo, , may violate substantive due process, it is not the deliberate indifference alone which is the "deprivation." Rather, it is that combined with "the State's affirmative act of restraining the individual's freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty," DeShaney v. Winnebago County Dept. of Social Servs., . "[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs ... it transgresses the substantive limits on state action set by the ... Due Process Clause." Ibid . (emphasis added). We have expressly left open whether, in a context in which the individual has not been deprived of the ability to care for himself in the relevant respect, "something less than intentional conduct, such as recklessness or 'gross negligence,' " can ever constitute a "deprivation" under the Due Process Clause. Daniels, supra, at 334, n. 3. Needless to say, if it is an open question whether recklessness can ever trigger due process protections, there is no precedential support for a substantive-due-process right to be free from reckless police conduct during a car chase.To hold, as respondents urge, that all government conduct deliberately indifferent to life, liberty, or property, violates the Due Process Clause would make " 'the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.' " Daniels, supra, at 332, quoting Paul v. Davis, (other citation omitted). Here, for instance, it is not fair to say that it was the police officer alone who "deprived" Lewis of his life. Though the police car did run Lewis over, it was the driver of the motorcycle, Willard, who dumped Lewis in the car's path by recklessly making a sharp left turn at high speed. (Willard had the option of rolling to a gentle stop and showing the officer his license and registration.) Surely Willard "deprived" Lewis of his life in every sense that the police officer did. And if Lewis encouraged Willard to make the reckless turn, Lewis himself would be responsible, at least in part, for his own death. Was there contributory fault on the part of Willard or Lewis? Did the police officer have the "last clear chance" to avoid the acci dent? Did Willard and Lewis, by fleeing from the police, "assume the risk" of the accident? These are interesting questions of tort law, not of constitutional governance. "Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." Daniels, supra, at 332. As we have said many times, "the Due Process Clause of the Fourteenth Amendment ... does not transform every tort committed by a state actor into a constitutional violation." DeShaney, supra, at 202 (citations omitted).If the people of the State of California would prefer a system that renders police officers liable for reckless driving during high-speed pursuits, "[t]hey may create such a system ... by changing the tort law of the State in accordance with the regular lawmaking process." 489 U.S., at 203. For now, they prefer not to hold public employees "liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle ... when in the immediate pursuit of an actual or suspected violator of the law." Cal. Veh. Code Ann. §17004 (West 1971). It is the prerogative of a self-governing people to make that legislative choice. "Political society," as the Seventh Circuit has observed, "must consider not only the risks to passengers, pedestrians, and other drivers that high-speed chases engender, but also the fact that if police are forbidden to pursue, then many more suspects will flee-and successful flights not only reduce the number of crimes solved but also create their own risks for passengers and bystanders." Mays v. City of East St. Louis , 123 F. 3d 999, 1003 (1997). In allocating such risks, the people of California and their elected representatives may vote their consciences. But for judges to overrule that democratically adopted policy judgment on the ground that it shocks their consciences is not judicial review but judicial governance.I would reverse the judgment of the Ninth Circuit, not on the ground that petitioners have failed to shock my still, soft voice within, but on the ground that respondents offer no textual or historical support for their alleged due process right. Accordingly, I concur in the judgment of the Court. |
0 | Prior to petitioner's trial in a Virginia state court for murder of a woman, he was examined by a psychiatrist appointed by the court at the request of his counsel. During the examination, the psychiatrist asked petitioner both about the murder and prior incidents of deviant sexual conduct, and petitioner stated that he once tore the clothes off a girl on a school bus before deciding not to rape her. Following a jury trial, petitioner was convicted. At the sentencing phase, the prosecution called the psychiatrist to the stand, and, over the defense's objection, he described the incident on the school bus. After further evidence was presented both for the prosecution and petitioner, the jury recommended the death sentence. On appeal to the Supreme Court of Virginia, petitioner raised a number of claims but did not assign any error concerning the admission of the psychiatrist's testimony, his counsel later explaining at a postconviction hearing that he had decided not to pursue that claim after determining that Virginia case law would not support his position at the time. The Supreme Court affirmed the conviction and sentence, not addressing any issues concerning the prosecution's use of the psychiatric testimony because under a rule of the court only errors assigned by the appellant would be considered. After exhausting state remedies, petitioner sought a writ of habeas corpus in Federal District Court, which denied the petition. The Court of Appeals affirmed.Held: Petitioner defaulted his underlying constitutional claim as to the admission of the psychiatrist's testimony by failing to press it before the Supreme Court of Virginia on direct appeal. Murray v. Carrier, ante, p. 478. Pp. 533-539. (a) Petitioner has not carried his burden of showing cause for his noncompliance with Virginia's rules of procedure. A deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a State's rules for the fair and orderly disposition of its criminal cases. Here, counsel's decision not to press the claim in question was not an error of such magnitude that it rendered his performance constitutionally deficient under the test of Strickland v. Washington, . Nor can petitioner rely on the novelty of the claim as "cause" for noncompliance with Virginia's rules, where it appears that various forms of such a claim had been percolating in the lower courts for years at the time of petitioner's original appeal. Pp. 533-539. (b) It is clear on the record that application of the cause and prejudice test will not result in a "fundamental miscarriage of justice," where the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, the psychiatrist's testimony should not have been presented to the jury, its admission did not pervert the jury's deliberations concerning the ultimate question of whether in fact petitioner constituted a continuing threat to society. Pp. 537-539. 769 F.2d 170, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, ante, p. 516. STEVENS, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, and in Parts II and III of which BRENNAN, J., joined, post, p. 539.J. Lloyd Snook III, by appointment of the Court, , argued the cause for petitioner. With him on the briefs was Richard J. Bonnie.James E. Kulp, Senior Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were William G. Broaddus, Attorney General, and Frank S. Ferguson, Assistant Attorney General.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Psychiatric Association et al. by Joel I. Klein, Joseph N. Onek, and Peter E. Scheer; for the American Psychological Association by Bruce J. Ennis, Jr., and Donald N. Bersoff; and for the New Jersey Department of the Public Advocate by Linda G. Rosenzweig.JUSTICE O'CONNOR delivered the opinion of the Court.We granted certiorari to decide whether and, if so, under what circumstances, a prosecutor may elicit testimony from a mental health professional concerning the content of an interview conducted to explore the possibility of presenting psychiatric defenses at trial. We also agreed to review the Court of Appeals' determination that any error in the admission of the psychiatrist's evidence in this case was irrelevant under the holding of Zant v. Stephens, . On examination, however, we conclude that petitioner defaulted his underlying constitutional claim by failing to press it before the Supreme Court of Virginia on direct appeal. Accordingly, we decline to address the merits of petitioner's claims and affirm the judgment dismissing the petition for a writ of habeas corpus.IFollowing a jury trial, petitioner was convicted of the May 1977 murder of Audrey Weiler. According to his confession, petitioner encountered Ms. Weiler in a secluded area near his home and raped her at knifepoint. Fearing that her testimony could send him back to prison, he then grabbed her by the neck and choked her until she fell unconscious. When he realized that she was still alive, he dragged her into a nearby river, submerged her head, and repeatedly stabbed her with his knife. A subsequent medical examination indicated that the death was attributable to three clusters of lethal injuries: asphyxia from strangulation, drowning, and multiple stab wounds.Prior to the trial, petitioner's appointed counsel, David Pugh, had explored the possibility of presenting a number of psychiatric defenses. Towards that end, Mr. Pugh requested that the trial court appoint a private psychiatrist, Dr. Wendell Pile, to conduct an examination of petitioner. Aware that psychiatric reports were routinely forwarded to the court and that such reports were then admissible under Virginia law, Mr. Pugh had advised petitioner not to discuss any prior criminal episodes with anyone. App. 134. See Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975). Although that general advice was intended to apply to the forthcoming psychiatric examination, Mr. Pugh later testified that he "did not specifically tell [petitioner] not to say anything to Doctor Pile about the offense or any offenses." App. 132. During the course of the examination, Dr. Pile did in fact ask petitioner both about the murder and about prior incidents of deviant sexual conduct. Tr. of State Habeas Hearing 19. Although petitioner initially declined to answer, he later stated that he had once torn the clothes off a girl on a school bus before deciding not to carry out his original plan to rape her. App. 44. That information, together with a tentative diagnosis of "Sociopathic Personality; Sexual Deviation (rape)," was forwarded to the trial court, with copies sent both to Mr. Pugh and to the prosecutor who was trying the case for the Commonwealth. Id., at 43-45. At no point prior to or during the interview did Dr. Pile inform petitioner that his statements might later be used against him or that he had the right to remain silent and to have counsel present if he so desired. Id., at 90. Cf. Estelle v. Smith, .At the sentencing phase of the trial, the Commonwealth called Dr. Pile to the stand. Over the defense's objection, Dr. Pile described the incident on the school bus. Tr. 934-935. On cross-examination, he repeated his earlier conclusion that petitioner was a "sociopathic personality." Id., at 936. After examining a second psychiatrist, the Commonwealth introduced petitioner's criminal record into evidence. It revealed that he had been convicted of rape in 1973 and had been paroled from the penitentiary on that charge less than four months prior to raping and murdering Ms. Weiler. The defense then called 14 character witnesses, who testified that petitioner had been a regular churchgoer, a member of the choir, a conscientious student in high school, and a good soldier in Vietnam. After lengthy deliberation, the jury recommended that petitioner be sentenced to death.Petitioner appealed his conviction and sentence to the Supreme Court of Virginia. In his brief he raised 13 separate claims, including a broad challenge to the constitutionality of Virginia's death penalty provisions, objections to several of the trial court's evidentiary rulings, and a challenge to the exclusion of a prospective juror during voir dire. Petitioner did not, however, assign any error concerning the admission of Dr. Pile's testimony. At a subsequent state postconviction hearing, Mr. Pugh explained that he had consciously decided not to pursue that claim after determining that "Virginia case law would [not] support our position at that particular time." App. 143. Various objections to the Commonwealth's use of Dr. Pile's testimony were raised, however, in a brief filed by amicus curiae Post-Conviction Assistance Project of the University of Virginia Law School.The Supreme Court of Virginia affirmed the conviction and sentence in all respects. Smith v. Commonwealth, 219 Va. 455, 248 S. E. 2d 135 (1978). In a footnote, it noted that, pursuant to a rule of the court, it had considered only those arguments advanced by amicus that concerned errors specifically assigned by the defendant himself. Id., at 460, n. 1, 248 S. E. 2d, at 139, n. 1. Accordingly, it did not address any issues concerning the prosecution's use of the psychiatric testimony. This Court denied the subsequent petition for certiorari, which, again, did not urge the claim that admission of Dr. Pile's testimony violated petitioner's rights under the Federal Constitution. .In 1979, petitioner sought a writ of habeas corpus in the Circuit Court for the City of Williamsburg and the County of James City. For the first time since the trial, he argued that the admission of Dr. Pile's testimony violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the Federal Constitution. The court ruled, however, that petitioner had forfeited the claim by failing to press it in earlier proceedings. At a subsequent evidentiary hearing, conducted solely on the issue of ineffective assistance of counsel, the court heard testimony concerning the reasons underlying Mr. Pugh's decision not to pursue the Fifth Amendment claim on appeal. On the basis of that testimony, the court found that Pugh and his assistant had researched the question, but had determined that the claim was unlikely to succeed. Thus, the court found, "counsel exercised reasonable judgment in deciding not to preserve the objection on appeal, and ... this decision resulted from informed, professional deliberation." App. to Pet. for Cert. 71. Petitioner appealed the denial of his habeas petition to the Supreme Court of Virginia, contending that the Circuit Court had erred in finding that his objection to the admission of Dr. Pile's testimony had been defaulted. The Supreme Court declined to accept the appeal, Smith v. Morris, 221 Va. cxliii (1981), and we again denied certiorari. .Having exhausted state remedies, petitioner sought a writ of habeas corpus in the United States District Court for the Eastern District of Virginia. In an unpublished order, the court denied the petition, holding that the objection to the admission of Dr. Pile's testimony was "clearly barred" under this Court's decision in Wainwright v. Sykes, . App. 158. In reaching that conclusion, the District Judge noted that "the default resulted not from the trial attorney's ignorance or inadvertence, but because of a deliberate tactical decision." Ibid.The Court of Appeals for the Fourth Circuit affirmed, but on different grounds. Smith v. Procunier, 769 F.2d 170 (1985). Finding it unnecessary to rely on procedural default or to address the merits of the substantive constitutional claim, the court held that admission of Dr. Pile's testimony, even if erroneous, could not be the basis for invalidating petitioner's sentence. It noted that the jury had relied on two distinct aggravating factors in its decision to recommend the death penalty. The psychiatric testimony, however, only bore on one of those factors, the likelihood that petitioner would "constitute a continuing serious threat to society." Va. Code 19.2-264.2 (1983); Tr. 1102. In that circumstance, the Court of Appeals believed, our decision in Zant v. Stephens, 462 U.S., at 884, required the conclusion that the error, if any, was irrelevant to the overall validity of the sentence. We granted certiorari, Smith v. Sielaff, , and now affirm on the authority of our decision in Murray v. Carrier, ante, p. 478.IIUnder Virginia law, failure to raise a claim on direct appeal from a criminal conviction ordinarily bars consideration of that claim in any subsequent state proceeding. See, e. g., Coppola v. Warden of Virginia State Penitentiary, 222 Va. 369, 282 S. E. 2d 10 (1981); Slayton v. Parrigan, 215 Va. 27, 205 S. E. 2d 680 (1974). In the present case, the Virginia courts have enforced that rule by declining to consider petitioner's objection to the admission of Dr. Pile's testimony, a claim concededly not included in his initial appeal from his conviction and sentence. Consistent with our earlier intimations in Reed v. Ross, , we held in Murray v. Carrier, ante, p. 478, that a federal habeas court must evaluate appellate defaults under the same standards that apply when a defendant fails to preserve a claim at trial. Accordingly, although federal courts at all times retain the power to look beyond state procedural forfeitures, the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both "cause" for noncompliance with the state rule and "actual prejudice resulting from the alleged constitutional violation." Wainwright v. Sykes, supra, at 84; Murray v. Carrier, ante, at 485. As we explained more fully in Carrier, this congruence between the standards for appellate and trial default reflects our judgment that concerns for finality and comity are virtually identical regardless of the timing of the defendant's failure to comply with legitimate state rules of procedure.We need not determine whether petitioner has carried his burden of showing actual prejudice from the allegedly improper admission of Dr. Pile's testimony, for we think it self-evident that he has failed to demonstrate cause for his noncompliance with Virginia's procedures. We have declined in the past to essay a comprehensive catalog of the circumstances that would justify a finding of cause. Reed v. Ross, supra, at 13; see also Wainwright v. Sykes, supra, at 91. Our cases, however, leave no doubt that a deliberate, tactical decision not to pursue a particular claim is the very antithesis of the kind of circumstance that would warrant excusing a defendant's failure to adhere to a State's legitimate rules for the fair and orderly disposition of its criminal cases. As the Court explained in Reed:"[D]efense counsel may not make a tactical decision to forgo a procedural opportunity - for instance, to object at trial or to raise an issue on appeal - and then when he discovers that the tactic has been unsuccessful, pursue an alternative strategy in federal court. The encouragement of such conduct by a federal court on habeas corpus review would not only offend generally accepted principles of comity, but would undermine the accuracy and efficiency of the state judicial systems to the detriment of all concerned. Procedural defaults of this nature are, therefore, inexcusable, and cannot qualify as `cause' for purposes of federal habeas corpus review." 468 U.S., at 14 (internal quotation and citation omitted). Here the record unambiguously reveals that petitioner's counsel objected to the admission of Dr. Pile's testimony at trial and then consciously elected not to pursue that claim before the Supreme Court of Virginia. The basis for that decision was counsel's perception that the claim had little chance of success in the Virginia courts. With the benefit of hindsight, petitioner's counsel in this Court now contends that this perception proved to be incorrect. Cf. Gibson v. Zahradnick, 581 F.2d 75 (CA4 1978) (repudiating reasoning of Gibson v. Commonwealth, 216 Va. 412, 219 S. E. 2d 845 (1975)). Even assuming that to be the case, however, a State's subsequent acceptance of an argument deliberately abandoned on direct appeal is irrelevant to the question whether the default should be excused on federal habeas. Indeed, it is the very prospect that a state court "may decide, upon reflection, that the contention is valid" that undergirds the established rule that "perceived futility alone cannot constitute cause," Engle v. Isaac, , and n. 36 (1982); for "[a]llowing criminal defendants to deprive the state courts of [the] opportunity" to reconsider previously rejected constitutional claims is fundamentally at odds with the principles of comity that animate Sykes and its progeny. Id., at 130.Notwithstanding the deliberate nature of the decision not to pursue his objection to Dr. Pile's testimony on appeal - a course of conduct virtually dispositive of any effort to satisfy Syke's "cause" requirement - petitioner contends that the default should be excused because Mr. Pugh's decision, though deliberate, was made in ignorance. Had he investigated the claim more fully, petitioner maintains, "it is inconceivable that he would have concluded that the claim was without merit or that he would have failed to raise it." Reply Brief for Petitioner 3.The argument is squarely foreclosed by our decision in Carrier, which holds that "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Ante, at 486-487. See also Engle v. Isaac, supra, at 133-134. Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel's performance constitutionally deficient under the test of Strickland v. Washington, . Carrier reaffirmed that "the right to effective assistance of counsel ... may in a particular case be violated by even an isolated error ... if that error is sufficiently egregious and prejudicial." Ante, at 496; see also United States v. Cronic, , n. 20 (1984). But counsel's deliberate decision not to pursue his objection to the admission of Dr. Pile's testimony falls far short of meeting that rigorous standard. After conducting a vigorous defense at both the guilt and sentencing phases of the trial, counsel surveyed the extensive transcript, researched a number of claims, and decided that, under the current state of the law, 13 were worth pursuing on direct appeal. This process of "winnowing out weaker arguments on appeal and focusing on" those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy. Jones v. Barnes, . It will often be the case that even the most informed counsel will fail to anticipate a state appellate court's willingness to reconsider a prior holding or will underestimate the likelihood that a federal habeas court will repudiate an established state rule. But, as Strickland v. Washington made clear, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." 466 U.S., at 689. Viewed in light of Virginia law at the time Mr. Pugh submitted his opening brief to the Supreme Court of Virginia, the decision not to pursue his objection to the admission of Dr. Pile's testimony fell well within the "wide range of professionally competent assistance" required under the Sixth Amendment to the Federal Constitution. Id., at 690.Nor can petitioner rely on the novelty of his legal claim as "cause" for noncompliance with Virginia's rules. See Reed v. Ross, 468 U.S., at 18 ("[W]here a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures"). Petitioner contends that this Court's decisions in Estelle v. Smith, , and Ake v. Oklahoma, , which were decided well after the affirmance of his conviction and sentence on direct appeal, lend support to his position that Dr. Pile's testimony should have been excluded. But, as a comparison of Reed and Engle makes plain, the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was "available" at all. As petitioner has candidly conceded, various forms of the claim he now advances had been percolating in the lower courts for years at the time of his original appeal. Brief for petitioner 20-21, n. 12; Reply Brief for Petitioner 3. Moreover, in this very case, an amicus before the Supreme Court of Virginia specifically argued that admission of Dr. Pile's testimony violated petitioner's rights under the Fifth and Sixth Amendments. Brief for Post-Conviction Assistance Project of the University of Virginia Law School as Amicus Curiae in No. 780293, pp. 53-62. Under these circumstances, it simply is not open to argument that the legal basis of the claim petitioner now presses on federal habeas was unavailable to counsel at the time of the direct appeal.We conclude, therefore, that petitioner has not carried his burden of showing cause for noncompliance with Virginia's rules of procedure. That determination, however, does not end our inquiry. As we noted in Engle and reaffirmed in Carrier, "`[i]n appropriate cases' the principles of comity and finality that inform the concepts of cause and prejudice `must yield to the imperative of correcting a fundamentally unjust incarceration.'" Murray v. Carrier, ante, at 495, quoting Engle v. Isaac, supra, at 135. Accordingly, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray v. Carrier, ante, at 496.We acknowledge that the concept of "actual," as distinct from "legal," innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on a capital offense. Nonetheless, we think it clear on this record that application of the cause and prejudice test will not result in a "fundamental miscarriage of justice." Engle, 456 U.S., at 135. There is no allegation that the testimony about the school bus incident was false or in any way misleading. Nor can it be argued that the prospect that Dr. Pile might later testify against him had the effect of foreclosing meaningful exploration of psychiatric defenses. While that concern is a very real one in the abstract, here the record clearly shows that Dr. Pile did ask petitioner to discuss the crime he stood accused of committing as well as prior incidents of deviant sexual conduct. Although initially reluctant to do so, ultimately petitioner was forthcoming on both subjects. In short, the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, Dr. Pile's testimony should not have been presented to the jury, its admission did not serve to pervert the jury's deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society. Under these circumstances, we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice.Nor can we concur in JUSTICE STEVENS' suggestion that we displace established procedural default principles with an amorphous "fundamental fairness" inquiry. Post, at 542-543. Precisely which parts of the Constitution are "fundamental" and which are not is left for future elaboration. But, for JUSTICE STEVENS, when a defendant in a capital case raises a "substantial, colorable" constitutional claim, a federal court should entertain it no matter how egregious the violation of state procedural rules, and regardless of the fairness of the opportunity to raise that claim in the course of his trial and appeal. Post, at 546. We reject the suggestion that the principles of Wainwright v. Sykes apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws. We similarly reject the suggestion that there is anything "fundamentally unfair" about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination. In view of the profound societal costs that attend the exercise of habeas jurisdiction, such exercise "carries a serious burden of justification." H. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146 (1970); see also Engle v. Isaac, supra, at 126-129. When the alleged error is unrelated to innocence, and when the defendant was represented by competent counsel, had a full and fair opportunity to press his claim in the state system, and yet failed to do so in violation of a legitimate rule of procedure, that burden has not been carried.Accordingly, we affirm the judgment of the Court of Appeals upholding the dismissal of petitioner's application for a writ of habeas corpus. Affirmed. [For dissenting opinion of JUSTICE BRENNAN, see ante, p. 516.]JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join and with whom JUSTICE BRENNAN joins as to Parts II and III, dissenting.The record in this case unquestionably demonstrates that petitioner's constitutional claim is meritorious, and that there is a significant risk that he will be put to death because his constitutional rights were violated.The Court does not take issue with this conclusion. It is willing to assume that (1) petitioner's Fifth Amendment right against compelled self-incrimination was violated; (2) his Eighth Amendment right to a fair, constitutionally sound sentencing proceeding was violated by the introduction of the evidence from that Fifth Amendment violation; and (3) those constitutional violations made the difference between life and death in the jury's consideration of his fate. Although the constitutional violations and issues were sufficiently serious that this Court decided to grant certiorari, and although the Court of Appeals for the Fourth Circuit decided the issue on the merits, this Court concludes that petitioner's presumably meritorious constitutional claim is procedurally barred and that petitioner must therefore be executed.In my opinion, the Court should reach the merits of petitioner's argument. To the extent that there has been a procedural "default," it is exceedingly minor - perhaps a kind of "harmless" error. Petitioner's counsel raised a timely objection to the introduction of the evidence obtained in violation of the Fifth Amendment. A respected friend of the Court - the University of Virginia Law School's Post-Conviction Assistance Project - brought the issue to the attention of the Virginia Supreme Court in an extensive amicus curiae brief. Smith's counsel also raised the issue in state and federal habeas corpus proceedings, and, as noted, the Court of Appeals decided the case on the merits. Consistent with the well-established principle that appellate arguments should be carefully winnowed,1 however, Smith's counsel did not raise the Fifth Amendment issue in his original appeal to the Virginia Supreme Court - an unsurprising decision in view of the fact that a governing Virginia Supreme Court precedent, which was then entirely valid and only two years old, decisively barred the claim.2 Nevertheless, the Court finds the lawyer's decision not to include the constitutional claim "virtually dispositive." Ante, at 535. The Court offers the remarkable explanation that "[u]nder these circumstances" - in which petitioner's death penalty will stand despite serious Fifth and Eighth Amendment violations that played a critical role in the determination that death is an appropriate penalty - "we do not believe that refusal to consider the defaulted claim on federal habeas carries with it the risk of a manifest miscarriage of justice." Ante, at 538.I fear that the Court has lost its way in a procedural maze of its own creation and that it has grossly misevaluated the requirements of "law and justice" that are the federal court's statutory mission under the federal habeas corpus statute.3 To understand the nature of the Court's error, it is necessary to assess the Court's conclusion that the claim is procedurally defaulted; to consider the Fifth Amendment violation; and to consider the Eighth Amendment violation.IWe begin with the common ground. The historic office of the Great Writ as the ultimate protection against fundamental unfairness is well know.4 That mission is reflected in the statutory requirement that the federal court "dispose of the matter as law and justice require." 28 U.S.C. 2243. It is by now equally clear that the application of the Court's "cause and prejudice" formulation as a rigid bar to review of fundamental constitutional violations has no support in the statute, or in Federal Rule of Criminal Procedure 12 (b)(2), from which it was initially imported;5 the standard thus represents judicial lawmaking of the most unabashed form. The Court nonetheless reaffirms today, as it has consistently held in the past,6 that federal courts retain the power to entertain federal habeas corpus requests despite the absence of "cause and prejudice," ante, at 537; the only question is whether to exercise that power. Despite the rigor of its cause-and-prejudice standard, moreover, the Court continues to commit itself to maintaining the availability of habeas corpus under certain circumstances, even in the absence of "cause," ibid.; indeed, this Term, the Court has emphasized the importance of that availability by remanding a case to consider the merits of a prisoner's claim even though the prisoner failed to show "cause" for the default. Murray v. Carrier, ante, p. 478.The Court concludes in this case that no miscarriage of justice will result from a refusal to entertain Smith's challenge to his death sentence. This conclusion is flawed in three respects. First, the Court mistakenly assumes that only a claim implicating "actual innocence" rises to the level of a miscarriage of justice. Second, the Court does not properly assess the force of a claim that a death penalty is invalid. Finally, the Court vastly exaggerates the state interest in refusing to entertain this claim.The Court accurately quotes the holding in Murray v. Carrier: "`[W]here a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.'" Ante, at 537. The Court then seeks to transfer this "actual innocence" standard to capital sentencing proceedings, and concludes that, in petitioner's sentencing hearing, "the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones." Ante, at 538. The Court does not explain, however, why Carrier's clearly correct holding about the propriety of the writ in a case of innocence must also be a limiting principle on the federal court's ability to exercise its statutory authority to entertain federal habeas corpus actions; more specifically, the Court does not explain why the same principle should not apply when a constitutional violation is claimed to have resulted in a lack of fundamental fairness, either in a conviction or in a death sentence.This analysis is far removed from the traditional understanding of habeas corpus. For instance, in Moore v. Dempsey, , the Court considered a claim that the murder convictions and death sentences of five black defendants were unconstitutional. The federal District Court had dismissed the writ of habeas corpus. In his opinion for the Court, Justice Holmes explained that in view of the allegations - systematic exclusion of blacks from the jury and threatened mob violence - the Federal District Court should not have dismissed the writ without considering the factual allegations. The Court noted the presence of a clear procedural default - the Arkansas Supreme Court had refused to entertain the challenge to discrimination in the jury because the objection "came too late." Id., at 91. The Court nevertheless held that the Federal District Court should have entertained the petition. Id., at 92.Although the allegations clearly implicated questions about the accuracy of the truth-finding process, the Court's opinion cannot be fairly read to rest on the kind of "innocence" inquiry that the Court propounds today. For the Court specifically rejected the notion that its inquiry into the presence of a serious constitutional violation was actually an inquiry into the guilt or innocence of the petitioners: "The petitioners say that [the victim] must have been killed by other whites [rather than by the black petitioners], but that we leave on one side as what we have to deal with is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved." Id., at 87-88 (emphasis added). Today, the Court adopts the converse of Justice Holmes' proposition: it leaves to one side the question whether constitutional rights have been preserved, and considers only petitioner's innocence or guilt.7 The majority's reformulation of the traditional understanding of habeas corpus appears to be premised on the notion that only constitutional violations which go to guilt or innocence are sufficiently serious to implicate the "fundamental fairness" alluded to in Engle v. Isaac, .8 If accuracy in the determination of guilt or innocence were the only value of our criminal justice system, then the Court's analysis might have a great deal of force. If accuracy is the only value, however, then many of our constitutional protections - such as the Fifth Amendment right against compelled self-incrimination and the Eighth Amendment right against cruel and unusual punishment, the very claims asserted by petitioner - are not only irrelevant, but possibly counterproductive.9 Our Constitution, however, and our decision to adopt an "accusatorial," rather than an "inquisitorial" system of justice,10 reflect a different choice. That choice is to afford the individual certain protections - the right against compelled self-incrimination and the right against cruel and unusual punishment among them - even if those rights do not necessarily implicate the accuracy of the truth-finding proceedings. Rather, those protections are an aspect of the fundamental fairness, liberty, and individual dignity that our society affords to all, even those charged with heinous crimes.In my opinion, then, the Court's exaltation of accuracy as the only characteristic of "fundamental fairness" is deeply flawed. Our criminal justice system, and our Constitution, protect other values in addition to the reliability of the guilt or innocence determination, and the statutory duty to serve "law and justice" should similarly reflect those values.Thus, the Court begins with a conception of "fundamental fairness" that is far too narrow and that conflicts with the nature of our criminal justice system. The Court similarly fails to give appropriate weight to the fact that capital punishment is at stake in this case. It is now well settled that "death is a different kind of punishment from any other which may be imposed in this country." Gardner v. Florida, (STEVENS, J.).11 It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, the consequence of scrupulously fair procedures. When a condemned prisoner raises a substantial, colorable Eighth Amendment violation, there is a special obligation, consistent with the statutory mission to "dispose of the matter as law and justice require," to consider whether the prisoner's claim would render his sentencing proceeding fundamentally unfair. Indeed, it was precisely this concern that prompted the Court of Appeals to consider petitioner's argument on the merits: "[W]e give weight to the consideration that we have before us a matter of life and death. The imminent execution of Smith serves as sufficient grounds to review the issue." Smith v. Procunier, 769 F.2d 170, 172 (1985).Finally, as in every habeas corpus decision, the magnitude of the State's interest must be considered. In this case, several factors suggest that the State's interest is not adequate to obstruct federal habeas corpus consideration of petitioner's claim. First, petitioner made a timely objection at trial, and the state interest in enforcing procedural default rules at trial is far greater than the State's interest in enforcing procedural default rules on appeal.12 Second, the issue was raised before the state court in an amicus curiae brief.13 Since this is a matter on which courts ordinarily may exercise discretion,14 the discretionary decision not to address the issue hardly rises to a state interest of sufficient magnitude that a man should die even though his Fifth and Eighth Amendment rights were violated to achieve that objective. Third, the issue was presented to the state courts in state habeas proceedings - after the precedent blocking petitioner's claim had been repudiated15 - and the state habeas court, while finding that the decision by Smith's counsel not to raise the issue with a governing Virginia precedent squarely against him was entirely reasonable,16 concluded that the Fifth Amendment claim was procedurally barred and thus did not address it.17 Fourth, the Court of Appeals for the Fourth Circuit addressed the merits and did not rest on any notion of procedural default; this Court customarily defers to federal courts of appeals on questions of state law,18 including questions about "cause" for failure to comply with state procedural rules.19 Finally, and most importantly, the inadequacy of the state interest in this death penalty context is decisively shown by the prevailing practice in many States that appellate courts have a special duty in capital cases to overlook procedural defaults and review the trial record for reversible error, before affirming that most severe of all sentences.20 Thus, the Court is mistaken in its narrow definition of fundamental fairness, in its failure to appreciate the significance of a challenge to a death penalty, and in its exaggeration of the State's interest in refusing to entertain a claim that was raised at trial, on appeal by an amicus, and in state habeas proceedings; that was addressed on the merits by the Court of Appeals (and briefed and argued on the merits in this Court); and that must be assumed to make the difference between life and death. Because I disagree with the Court's evaluation of these matters, I would address the merits of petitioner's argument that constitutional violations render his sentence of death fundamentally unfair. IIThe introduction of petitioner's comments to the court-appointed psychiatrist clearly violated the Fifth Amendment. As the majority points out, psychiatric reports by court-appointed psychiatrists "were routinely forwarded to the court and ... were then admissible under Virginia law." Ante, at 529. However, "[a]t no point prior to or during the interview did Dr. Pile inform petitioner that his statements might later be used against him or that he had the right to remain silent and to have counsel present if he so desired." Ante, at 530. Moreover, the court-appointed psychiatrist related petitioner's description of an earlier sexual assault in a letter to the court and to the prosecution, as well as to the defense, and testified about the description, at the State's request, at petitioner's capital sentencing hearing. The State thus relied on Dr. Pile's testimony as evidence of "future dangerousness," one of the two aggravating circumstances found by the jury to justify a sentence of death.21 CHIEF JUSTICE BURGER'S opinion for the Court in Estelle v. Smith, , makes it absolutely clear that the introduction of this evidence by the prosecution at the sentencing stage violated the Fifth Amendment. As THE CHIEF JUSTICE explained, the Fifth Amendment fully applies to a capital sentencing proceeding: "Just as the Fifth Amendment prevents a criminal defendant from being made `"the deluded instrument of his own conviction,"' Culombe v. Connecticut[568,] 581, quoting 2 W. Hawkins, Pleas of the Crown 595 (8th ed. 1824), it protects him as well from being made `the deluded instrument' of his own execution." Id., at 462. As THE CHIEF JUSTICE also explained, prosecutorial use of evidence from a psychiatric interrogation in a capital sentencing proceeding requires the protections, and warnings, accorded the Fifth Amendment right in other contexts: "Because [the defendant] did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to [the psychiatrist] to establish his future dangerousness." Id., at 468.Thus, the use of petitioner's statements clearly violated the Fifth Amendment.22 In view of the majority's willingness to assume that the constitutional violation is present but that the failure to address it does not affect the fundamental fairness of petitioner's sentence, moreover, it is instructive to recall the importance of the Fifth Amendment right at issue. Again, THE CHIEF JUSTICE'S opinion in Estelle v. Smith provides guidance: "Miranda held that `the prosecution may not use statements, whether exculpatory or inculpatory stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' ... The purpose of these admonitions is to combat what the Court saw as `inherently compelling pressures' at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it, which is the prerequisite for `an intelligent decision as to its exercise.' ... . . "The Fifth Amendment privilege is `as broad as the mischief against which it seeks to guard,' Counselman v. Hitchcock, , and the privilege is fulfilled only when a criminal defendant is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty ... for such silence.' Malloy v. Hogan, 378 U.S., at 1, 8 (1964)." Id., at 466-468. Given the historic importance of the Fifth Amendment, and the fact that the violation of this right made a significant difference in the jury's evaluation of petitioner's "future dangerousness" (and consequent death sentence), it is not only proper, but imperative, that the federal courts entertain petitioner's entirely meritorious argument that the introduction of the psychiatrist's testimony at his sentencing hearing violated that fundamental protection.23 IIIIt is also quite clear that the introduction of the evidence violated his Eighth Amendment right to a fair sentencing proceeding. In this respect, I disagree with the Court of Appeals' reading of the opinion that I authored for the Court in Zant v. Stephens, . The Court of Appeals concluded that, because the jury also found an aggravating circumstance of "vileness," the death sentence could stand even if Dr. Pile's testimony represented a flagrant Fifth Amendment violation.In Zant, we held that the Georgia Supreme Court's invalidation of one of the three aggravating circumstances found by the jury did not require that the death penalty be set aside. But that conclusion was reached only after we satisfied ourselves that the evidence relating to the invalid aggravating circumstance had been properly admitted.24 We did not conclude, as the Court of Appeals seems to have assumed, that any evidence concerning the invalid circumstance was simply irrelevant because the valid circumstances were, in all events, sufficient to support the death penalty. The fact that the record adequately establishes one valid aggravating circumstance may make the defendant eligible for the death penalty but it does not justify the conclusion that a death sentence should stand even though highly prejudicial inadmissible evidence was presented to the jury at the sentencing hearing. The introduction of such highly prejudicial, inadmissible evidence - evidence that itself represents an independent constitutional violation - quite clearly undermines the validity of the capital sentencing proceeding and violates the Eighth Amendment.IVThus, I would not only reach the merits of petitioner's constitutional claim but also would conclude that it has merit. The question that remains is the one the Court addresses in the last two paragraphs of its opinion - whether the constitutional error warrants the conclusion that the death penalty should be set aside in this habeas corpus proceeding. I think that question should be answered by reference to the language of the governing statute - the writ should issue "as law and justice require." To hold, as the Court does today, that petitioner's death sentence must stand despite the fact that blatant constitutional violations presumably made the difference between the jury's recommendation of life or death, violates not only "law," but, quite clearly, "justice" as well.I respectfully dissent. |
0 | Petitioner was tried in an Illinois State Court, convicted of the unlawful possession and sale of marijuana, and sentenced to imprisonment. Her conviction was sustained by the State Supreme Court, notwithstanding the admission in evidence at her trial of an oral confession obtained by threats of police officers that, if she did not "cooperate," she would be deprived of state financial aid for her dependent children and that her children would be taken from her and she might never see them again. Held: Petitioner's confession was coerced; its admission in evidence violated the Due Process Clause of the Fourteenth Amendment; and the judgment affirming her conviction is reversed. Pp. 529-538. 1. Petitioner's confession, made in the circumstances shown by this record, was coerced. Pp. 529-534. 2. In view of a certification to this Court by the State Supreme Court that "decision of the federal claim ... was necessary to our judgment in this case," it cannot be said that petitioner failed properly to assert or preserve that claim at her trial and that, therefore, her conviction rests upon an adequate and independent state ground. Pp. 535-536. 3. It cannot be said that petitioner's conviction did not rest in any part on her confession, because the record affirmatively shows that her confession was admitted in evidence and considered by the trial and appellate courts. P. 536. 4. Admission of petitioner's coerced confession in evidence was not harmless error, even if the other evidence was sufficient to support her conviction. Pp. 536-538. 21 Ill. 2d 63, 171 N. E. 2d 17, reversed.Jewel Lafontant argued the cause and filed a brief for petitioner.William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Raymond S. Sarnow, A. Zola Groves and Edward A. Berman, Assistant Attorneys General. MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was tried in the Criminal Court of Cook County, Illinois, on an indictment charging her with the unlawful possession and sale of marijuana. She was convicted and sentenced to the penitentiary for "not less than ten nor more than eleven years." The judgment of conviction was affirmed on appeal by the Illinois Supreme Court. 21 Ill. 2d 63, 171 N. E. 2d 17. We granted certiorari. . For the reasons stated in this opinion, we hold that the petitioner's trial did not meet the demands of due process of law, and we accordingly set aside the judgment before us.On January 17, 1959, three Chicago police officers arrested James Zeno for unlawful possession of narcotics. They took him to a district police station. There they told him that if he "would set somebody up for them, they would go light" on him. He agreed to "cooperate" and telephoned the petitioner, telling her that he was coming over to her apartment. The officers and Zeno then went to the petitioner's apartment house, and Zeno went upstairs to the third floor while the officers waited below. Some time later, variously estimated as from five to 20 minutes, Zeno emerged from the petitioner's third floor apartment with a package containing a substance later determined to be marijuana. The officers took the package and told Zeno to return to the petitioner's apartment on the pretext that he had left his glasses there. When the petitioner walked out into the hallway in response to Zeno's call, one of the officers seized her and placed her under arrest.1 The officers and Zeno then entered the petitioner's apartment.2 The petitioner at first denied she had sold the marijuana to Zeno, insisting that while he was in her apartment Zeno had merely repaid a loan. After further conversations with the officers, however, she told them that she had sold the marijuana to Zeno.The officers testified to this oral confession at the petitioner's trial, and it is this testimony which, we now hold, fatally infected the petitioner's conviction. The petitioner testified at the trial that she had not in fact sold any marijuana to Zeno, that Zeno had merely repaid a long-standing loan.3 She also testified, however, that she had told the officers on the day of her arrest that she had sold Zeno marijuana, describing the circumstances under which this statement was made as follows: "I told him [Officer Sims] I hadn't sold Zeno; I didn't know anything about narcotics and I had no source of supply. He kept insisting I had a source of supply and had been dealing in narcotics. I kept telling him I did not and that I knew nothing about it. Then he started telling me I could get 10 years and the children could be taken away, and after I got out they would be taken away and strangers would have them, and if I could cooperate he would see they weren't; and he would recommend leniency and I had better do what they told me if I wanted to see my kids again. The two children are three and four years old. Their father is dead; they live with me. I love my children very much. I have never been arrested for anything in my whole life before. I did not know how much power a policeman had in a recommendation to the State's Attorney or to the Court. I did not know that a Court and a State's Attorney are not bound by a police officer's recommendations. I did not know anything about it. All the officers talked to me about my children and the time I could get for not cooperating. All three officers did. After that conversation I believed that if I cooperated with them and answered the questions the way they wanted me to answer, I believed that I would not be prosecuted. They had said I had better say what they wanted me to, or I would lose the kids. I said I would say anything they wanted me to say. I asked what I was to say. I was told to say `You must admit you gave Zeno the package' so I said, `Yes, I gave it to him.' ... . . "... The only reason I had for admitting it to the police was the hope of saving myself from going to jail and being taken away from my children. The statement I made to the police after they promised that they would intercede for me, the statements admitting the crime, were false. ... . . "... My statement to the police officers that I sold the marijuana to Zeno was false. I lied to the police at that time. I lied because the police told me they were going to send me to jail for 10 years and take my children, and I would never see them again; so I agreed to say whatever they wanted me to say." The police officers did not deny that these were the circumstances under which the petitioner told them that she had sold marijuana to Zeno. To the contrary, their testimony largely corroborated the petitioner's testimony. Officer Sims testified: "I told her then that Zeno had been trapped and we asked him to cooperate; that he had made a phone call to her and subsequently had purchased the evidence from her. I told her then if she wished to cooperate, we would be willing to recommend to the State leniency in her case. At that time, she said, `Yes, I did sell it to him.' ... . . "... While I was talking to her in the bedroom, she told me that she had children and she had taken the children over to her mother-in-law, to keep her children. "Q. Did you or anybody in your presence indicate or suggest or say to her that her children would be taken away from her if she didn't do what you asked her to do? "Witness: I believe there was some mention of her children being taken away from her if she was arrested. "The Court: By whom? Who made mention of it? "The Witness: I believe Officer Bryson made that statement and I think I made the statement at some time during the course of our discussion that her children could be taken from her. We did not say if she cooperated they wouldn't be taken. I don't know whether Kobar said that to her or not. I don't recall if Kobar said that to her or not. ... . . "I asked her who the clothing belonged to. She said they were her children's. I asked how many she had and she said 2. I asked her where they were or who took care of them. She said the children were over at the mother's or mother-in-law. I asked her how did she take care of herself and she said she was on ADC. I told her that if we took her into the station and charged her with the offense, that the ADC would probably be cut off and also that she would probably lose custody of her children. That was not before I said if she cooperated, it would go light on her. It was during the same conversation. ... . . "... I made the statement to her more than once; but I don't know how many times, that she had been set up and if she cooperated we would go light with her." Officer Bryson testified: "Miss Lynumn said she was thinking about her children and she didn't want to go to jail. I was present and heard something pertaining to her being promised leniency if she would cooperate. I don't know exactly who said it. I could have, myself, or Sims." It is thus abundantly clear that the petitioner's oral confession was made only after the police had told her that state financial aid for her infant children would be cut off, and her children taken from her, if she did not "cooperate." These threats were made while she was encircled in her apartment by three police officers and a twice convicted felon who had purportedly "set her up." There was no friend or adviser to whom she might turn. She had had no previous experience with the criminal law, and had no reason not to believe that the police had ample power to carry out their threats.We think it clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in each case is whether the defendant's will was overborne at the time he confessed. Chambers v. Florida, ; Watts v. Indiana, , 53; Leyra v. Denno, . If so, the confession cannot be deemed "the product of a rational intellect and a free will." Blackburn v. Alabama, . See also Spano v. New York, ; Ashcraft v. Tennessee, ; and see particularly, Harris v. South Carolina, .In this case counsel for the State of Illinois has conceded, at least for purposes of argument, that the totality of the circumstances disclosed by the record must be deemed to have combined to produce an impellingly coercive effect upon the petitioner at the time she told the officers she had sold marijuana to Zeno. But counsel for the State argues that we should nonetheless affirm the judgment before us upon either of two alternative grounds. It is contended first that the petitioner did not properly assert or preserve her federal constitutional claim in accord with established rules of Illinois procedure, and that her conviction therefore rests upon an adequate and independent foundation of state law. Secondly, it is urged that the petitioner's conviction "does not rest in whole or in any part upon petitioner's confession." We find both of these contentions without validity.It is true that the record in this case does not show that the petitioner explicitly asserted her federal constitutional claim in the trial court. And it is said that in Illinois the procedural rule is settled that where a constitutional claim which is based not upon the alleged unconstitutionality of a statute, but upon the facts of a particular case, is not clearly and appropriately raised in the trial court, the claim will not be considered on appeal by the Supreme Court of Illinois. In other words, such a claim of constitutional right, it is said, must be asserted in the trial court or it will be deemed upon appellate review to have been waived. People v. Touhy, 397 Ill. 19, 72 N. E. 2d 827.If all we had to go on were the record in the Illinois trial and appellate courts, there would indeed be color to the claim of counsel for the State, and we would be squarely faced with the necessity of determining what the Illinois procedural rule actually is, and whether the rule constituted an adequate independent ground in support of the judgment affirming the petitioner's conviction. But that is not necessary in this case. For there is here a short and complete answer to the respondent's argument. Before acting upon the petition for certiorari, we entered an order directed to this very problem. The order accorded counsel for the petitioner "opportunity to secure a certificate from the Supreme Court of Illinois as to whether the judgment herein was intended to rest on an adequate and independent state ground, or whether decision of the federal claim ... was necessary to the judgment rendered." . The answer of the Supreme Court of Illinois was unambiguous. On June 8, 1962, that court issued the following "Response to Request for Certificate": "In response to a request by counsel for the plaintiff in error we hereby certify that decision of the federal claim referred to in the order of the United States Supreme Court dated November 13, 1961, was necessary to our judgment in this case." We decline to search behind this certificate of the Supreme Court of Illinois.The State's contention that the petitioner's conviction did not rest in any part upon her confession is quite without merit. The case was tried by the court without a jury. The record shows that twice during the trial the petitioner's counsel moved to strike the testimony of the police officers as to the petitioner's oral statement to them. On the first occasion the trial judge reserved a ruling on the motion "until the close of the State's case." When the motion was renewed, the record states that "[t]he motion to strike was denied." Thus the record affirmatively shows that the evidence of the petitioner's confession was admitted and considered by the trial court.On appeal, the Supreme Court of Illinois, which has power independently to assess the evidence of guilt in a criminal case, People v. Ware, 23 Ill. 2d 59, 177 N. E. 2d 362, included in its summary of the prosecution's evidence in this case the statement that "[t]he police officers also testified to certain admissions of guilt made to them by defendant on January 17, 1959." 21 Ill. 2d, at 67, 171 N. E. 2d, at 19. Later in its opinion, the court stated: "A review of the record does indicate, however, that strong suggestions of leniency were made to defendant subsequent to her arrest and prior to her admissions. Even in the absence of defendant's statements, there is clear proof by Zeno and the police officers that defendant gave Zeno a package containing marijuana. Upon a review of the entire record, we are convinced that the evidence fully supports the judgment of the trial court... ." 21 Ill. 2d, at 68, 171 N. E. 2d, at 20. While this statement is not free from ambiguity, we take it to express the view that even if the testimony as to the petitioner's confession was erroneously admitted, the error was a harmless one in the light of other evidence of the petitioner's guilt.4 That is an impermissible doctrine. As was said in Payne v. Arkansas, "this Court has uniformly held that even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment." , at 568. See Spano v. New York, ; Watts v. Indiana, , n. 2; Haley v. Ohio, .The judgment is set aside, and the case is remanded to the Supreme Court of Illinois for further proceedings not inconsistent with this opinion. It is so ordered. |
6 | [Footnote *] Together with No. 94, National Labor Relations Board v. Florida Citrus Canners Cooperative, also on certiorari to the same Court, argued March 19-20, 1962. The Court of Appeals for the Fifth Circuit denied enforcement of orders of the National Labor Relations Board requiring reinstatement with back pay of employees found to have been discriminatorily discharged in violation of the National Labor Relations Act. In doing so, the Court of Appeals applied a special rule which it had adopted for use in reinstatement cases, to the effect that the employer's statement under oath as to the reason for the discharge must be believed unless he is impeached or contradicted. Held: The judgments are reversed and the cases are remanded to the Court of Appeals for reconsideration. Pp. 405-409. (a) A reviewing court is not barred from setting aside a decision of the National Labor Relations Board when it cannot conscientiously find that the evidence supporting that decision is substantial when viewed in the light of "the record considered as a whole"; but it may not displace the Board's choice between two fairly conflicting views, even though the Court would justifiably have made a different choice had the matter been before it de novo. Universal Camera Corp. v. Labor Board, . P. 405. (b) There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. Pp. 407-408. (c) Since this Court is in doubt as to how the Court of Appeals would have decided these two cases in the absence of its own special rule applicable to such cases, the cases are remanded to that Court for reconsideration. Pp. 408-409. 286 F.2d 16; 288 F.2d 630, reversed and cases remanded. Norton J. Come argued the cause for petitioner in both cases. With him on the briefs were Solicitor General Cox, Stuart Rothman, Dominick L. Manoli, Frederick U. Reel, Russell Specter and Allan I. Mendelsohn.Robert T. Thompson argued the cause for respondents in No. 77. With him on the briefs was Alexander E. Wilson, Jr.O. R. T. Bowden argued the cause and filed briefs for respondent in No. 94.PER CURIAM.These cases are here on petitions for certiorari to the Court of Appeals for the Fifth Circuit, which refused enforcement of orders of the Board. We granted certiorari () because there was a seeming noncompliance by that court with our admonitions in Universal Camera Corp. v. Labor Board, . We there said that while the "reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view," it may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Id., at 488.Each of these cases involves alleged discriminatory discharges of employees in violation of the National Labor Relations Act, 29 U.S.C. 158 (a) (3); and in each the Board ordered, inter alia, reinstatement of the workers in question with back pay. See 124 N. L. R. B. 1331, 124 N. L. R. B. 1182. In that type of case the Fifth Circuit has fashioned a special rule that was announced in Labor Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433, a decision rendered in 1941. In case of a cease-and-desist order, the court said that it generally "costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order." Id., at 438. But the court established a more onerous rule for reinstatement cases: "Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough. The duty to weigh and test the evidence is of course on the Board. This court may not overrule a fact conclusion supported by substantial evidence, even though we deem it incorrect under all the evidence... . In the matters now concerning us, the controlling and ultimate fact question is the true reason which governed the very person who discharged or refused to reemploy in each instance. There is no doubt that each employee here making complaint was discharged, or if laid off was not reemployed, and that he was at the time a member of the union. In each case such membership may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ. If no other reason is apparent, union membership may logically be inferred. Even though the discharger disavows it under oath, if he can assign no other credible motive or cause, he need not be believed. But it remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point." Id., at 438-439. This special rule concerning the weight of the evidence necessary to sustain the Board's orders for reinstatement with back pay has been repeatedly followed by the Fifth Circuit Court of Appeals in decisions refusing enforcement of that particular type of order. See Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260; Labor Board v. Alco Feed Mills, 133 F.2d 419; Labor Board v. Ingram, 273 F.2d 670; Labor Board v. Allure Shoe Corp., 277 F.2d 231; Frosty Morn Meats, Inc., v. Labor Board, 296 F.2d 617.The Court of Appeals in No. 77, Labor Board v. Walton Mfg. Co., 286 F.2d 16, 25, in resolving the issue of credibility between witnesses for the employer and witnesses for the union, as to the reasons for the discharge of the employees in question, relied on the test stated in Labor Board v. Tex-O-Kan Flour Mills Co., supra. In No. 94, Labor Board v. Florida Citrus Canners Cooperative, 288 F.2d 630, decided less than three months later, the Tex-O-Kan opinion was not mentioned. But its test of credibility of witnesses seemingly was applied. 288 F.2d, at 636-638.There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases. Labor Board v. Pittsburgh S. S. Co., , and the Universal Camera Corp. case, both decided the same day, were cases involving reinstatement. They state a rule for review by Courts of Appeals in all Labor Board cases. The test in the Tex-O-Kan opinion for reinstatement cases is that the employer's statement under oath must be believed unless there is "impeachment of him" or "substantial contradiction," or if there are "circumstances" that "raise doubts" they must be "inconsistent with the positive sworn evidence on the exact point." But the Examiner - the one whose appraisal of the testimony was discredited by the Court of Appeals in the Florida Citrus Canners Cooperative case - sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records. As we said in the Universal Camera case: "... The findings of the examiner are to be considered along with the consistency and inherent probability of testimony. The significance of his report, of course, depends largely on the importance of credibility in the particular case." 340 U.S., at 496. For the demeanor of a witness"... may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies." Dyer v. MacDougall, 201 F.2d 265, 269. We are in doubt as to how the Court of Appeals would have decided these two cases were it rid of the yardstick for reinstatement proceedings fashioned in its Tex-O-Kan decision. The reviewing function has been deposited, not here, but in the Court of Appeals, as the Universal Camera case makes clear. We "will intervene only ... when the standard appears to have been misapprehended or grossly misapplied." 340 U.S., at 491. Since the special rule for reinstatement cases announced in the Tex-O-Kan opinion apparently colored the review given by the Court of Appeals of these two orders, we remand the cases to it for reconsideration. Reversed.MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.These cases were brought here on the claim that the Court of Appeals had exceeded its reviewing power over orders of the National Labor Relations Board under the National Labor Relations Act, 29 U.S.C. 160 (e), requiring that "the record considered as a whole" be canvassed. The Court does not find that the court did not assess the evidence, including inferences fairly to be drawn, in accordance with the scope of judicial review outlined in Universal Camera Corp. v. Labor Board, , and its companion case, Labor Board v. Pittsburgh S. S. Co., . But it remands the cases to the Court of Appeals because of doubt whether that court was improperly influenced in its determinations by what is deemed an erroneous legal rule as applied in Labor Board v. Tex-O-Kan Flour Mills Co., 122 F.2d 433.I am constrained to disagree with the Court's disposition of these cases on three grounds. First, the Court assumes legal identity between two cases that raise entirely different issues. Second, in neither case did the Court of Appeals apply a special and more stringent rule of review in cases of reinstatement for wrongful discharge. Finally, I think the Tex-O-Kan rule, insofar as it was applied below in Walton and is disapproved here, is in accord with prior decisions of this Court and does not conflict with the substantial evidence rule.The Court of Appeals in Walton accepted findings by the Trial Examiner and the Board, 124 N. L. R. B. 1331, that respondents had violated 8 (a) (1) of the National Labor Relations Act, 29 U.S.C. 158 (a) (1), by surveillance of union activities, interrogations of employees regarding the union, and threats of reprisals for union adherence. But the court refused to enforce an order to reinstate a number of employees with back pay, holding on its reading of the same dead record that the Board had before it, that there was not substantial evidence to support the Board's findings that the employees had been discharged or laid off because of their union membership and activities. 286 F.2d 16.In Florida Citrus the Examiner and the Board found that the respondent had refused to bargain as required by 8 (a) (5), and therefore that employees who had participated in a resulting strike had been discharged and replaced in violation of 8 (a) (1) and (3). 124 N. L. R. B. 1182. The Court of Appeals denied enforcement of the order to cease and desist, to bargain on request, and to reinstate the discharged employees with pay; it did so because it concluded, on consideration of the record as a whole, that the critical finding of refusal to bargain was not supported by substantial evidence. 288 F.2d 630.The Court today reverses both decisions for misapplication of the standard of review set forth in 10 (e) of the National Labor Relations Act, 29 U.S.C. 160 (e), and 10 (e) of the Administrative Procedure Act, 5 U.S.C. 1009 (e), and elaborated in Universal Camera Corp. v. Labor Board, , that "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." The Court finds that the Court of Appeals may have erroneously adopted a special rule for cases of reinstatement for wrongful discharge, forbidding the Board to discredit an employer's testimony as to the reason for discharge unless he is impeached or contradicted. These decisions are reversed because in Walton the Court of Appeals "relied on the test stated in Labor Board v. Tex-O-Kan Flour Mills Co.," 122 F.2d 433, and in Florida Citrus, although Tex-O-Kan was not cited, "its test of credibility of witnesses seemingly was applied." 1. Tex-O-Kan. That case came before the Court of Appeals for the Fifth Circuit in 1941. Judge Sibley, writing for the court, found ample evidence to sustain a cease-and-desist order against interference with union activity: "a cease and desist order on this point costs no money and only warns to observe a right which already existed; evidence short of demonstration may easily justify such an order." 122 F.2d, at 438. But, he continued,"Orders for reinstatement of employees with back pay are somewhat different. They may impoverish or break an employer, and while they are not in law penal orders, they are in the nature of penalties for the infraction of law. The evidence to justify them ought therefore to be substantial, and surmise or suspicion, even though reasonable, is not enough." Accepting that the union membership of each discharged employee "may have been the cause, for the union was not welcomed by the persons having authority to discharge and employ," the court enforced the backpay order in several instances where no other reason for discharge was apparent, or where the reason given was refuted by the facts. But where management gave reasons for the discharge that were not contradicted by the facts - that a job had been abolished, that work had been inadequately done, that an employee had engaged in irregular conduct with company property or failed to report the taking of sick leave - the court held the findings of anti-union animus to be without substantial support:"[I]t remains true that the discharger knows the real cause of discharge, it is a fact to which he may swear. If he says it was not union membership or activity, but something else which in fact existed as a ground, his oath cannot be disregarded because of suspicion that he may be lying. There must be impeachment of him, or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point. This was squarely ruled as to a jury in Pennsylvania R. R. Co. v. Chamberlain, ... and the ruling is applicable to the Board as fact-finder." 122 F.2d, at 439.2. History of Tex-O-Kan in the Fifth Circuit. In numerous cases Tex-O-Kan has been cited and quoted by the Court of Appeals for its view that testimony justifying discharge should not lightly be disregarded. Labor Board v. Goodyear Tire & Rubber Co., 129 F.2d 661, 665; Labor Board v. Alco Feed Mills, 133 F.2d 419, 421; Labor Board v. Oklahoma Transp. Co., 140 F.2d 509, 510; Labor Board v. Edinburg Citrus Assn., 147 F.2d 353, 355; Labor Board v. McGahey, 233 F.2d 406, 411-412; Labor Board v. Drennon Food Products Co., 272 F.2d 23, 27; Labor Board v. Walton Mfg. Co., 286 F.2d 16, 25; Labor Board v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300, 306. See also Frosty Morn Meats, Inc., v. Labor Board, 296 F.2d 617, 620-621, where Tex-O-Kan was not cited. On occasion Tex-O-Kan has also been quoted to distinguish between cease-and-desist orders and those requiring payment of back pay. Labor Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260, 263; Labor Board v. Ingram, 273 F.2d 670, 673. The Tex-O-Kan credibility view has also been applied by the court in determining whether to enforce an order requiring payment of a bonus found to have been withheld in order to discourage union activity. Labor Board v. Crosby Chemicals, Inc., 274 F.2d 72, 78. It has not been cited on the issue of credibility in cases involving only cease-and-desist orders. 3. A Special Rule for Reinstatement? I agree with the Court that, despite the consequences of backpay orders, "There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases." However, although the Court of Appeals has several times in the past seemingly applied two different rules, and although it has not relied on Tex-O-Kan in cases dealing solely with cease-and-desist orders, I do not think either of the present cases presents an appropriate occasion for admonishing that court against applying a double standard. Both cases concerned both cease-and-desist orders and reinstatement with back pay. In neither did the Court of Appeals suggest that it was applying a special rule for reinstatement orders alone. The part of the Tex-O-Kan opinion differentiating backpay from cease-and-desist orders, quoted by this Court, was not quoted by the Court of Appeals in either case. In Walton the court said only that "The requirements of substantiality of evidence and reasonableness of the inferences to be drawn from the evidence are not less in a case of reinstatement and reimbursement than where a cease and desist order is directed against interference" - not that the requirements are more strict. In Florida Citrus the single factual issue whether respondent had refused to bargain underlay both backpay and cease-and-desist orders. The court properly dealt with this as a single issue and did not purport to apply different standards of review for purposes of various parts of the order. Tex-O-Kan was nowhere cited. 4. Tex-O-Kan's Credibility Rule and the Present Cases. (1) In Florida Citrus collective bargaining had broken off shortly after a disastrous freeze that threatened future business. The Trial Examiner found that the company was responsible for the failure of bargaining. He recited a delay in meeting which he attributed to the company. He referred to the company's refusal to discuss the union's proposal at a meeting held just after the freeze, and to the company's failure in the face of union demands to request a postponement of negotiations to permit assessment of the effect of the freeze, as it had announced it intended to do. Finally, by resolving conflicting testimony in favor of the General Counsel's witnesses, he found that after the failure of negotiations the company had made anti-union statements and offered inducements to the employees should they forsake the union. This finding buttressed his interpretation of the company's earlier conduct when bargaining was called off. In rejecting the testimony of production manager Stephenson and accepting that of Holly, an employee to whom the alleged anti-union statements and promises had been made, the Examiner relied in part on a comparison of the demeanor of these two witnesses, saying also that Stephenson admitted such subjects as a company union had come up in the conversation; that many of the statements he was said to have made later came true; and that Holly was a logical choice to speak such sentiments to because he might reasonably have been induced to lead a movement of defection from the union. The Court of Appeals held the finding of refusal to bargain to be without substantial support. It ruled that the Board could not reasonably infer a refusal to bargain from the company's refusal to make a formal request for postponing negotiations, since the union had issued an ultimatum that in effect rejected the request. Moreover, it rejected the Board's determinations of credibility. The court made it clear that it believed the Examiner's findings to have been based on "the belief that reliance may not be placed upon the testimony of a witness who is a part of the management of an employer in a controversy with a labor union." Beyond this, the court declared it was unable to accept the Examiner's crediting of Holly and discrediting of Stephenson because there was no prior indication of company opposition to the union and because it was unlikely that a manager would divulge the details of company labor policy to a watchman. As to a conflict in testimony between Stephenson and Wingate, the union's chief representative, the court ruled that Wingate's testimony should have been "more carefully scrutinized" because the Examiner himself had found Wingate sometimes inaccurate or careless.The Board attacks this decision as in conflict with the substantial evidence test of the Labor Management Relations Act and of the Universal Camera doctrine. The crux of its objection is that the court has substituted its judgment as to credibility for that of the Examiner and the Board; in particular, it complains that the record gives no support to the court's conclusion that the Examiner was inclined to discredit on principle all company witnesses. Neither in its petition for certiorari nor its brief on the merits did the Board cite Tex-O-Kan as the ground of its objection to the decision in Florida Citrus. Yet this Court reverses the Court of Appeals' decision without reference to the facts or the holding of that case, saying simply that the Tex-O-Kan "test of credibility of witnesses seemingly was applied." But Tex-O-Kan was no more relied on by the Court of Appeals than it was attacked in this case by the Board. Tex-O-Kan forbids the Examiner and the Board to dismiss summarily management's reasons for a discharge if not contradicted, impeached, or inherently improbable. Florida Citrus was not a case of uncontradicted testimony. It was not a case in which motivation for a discharge was in doubt. The issue was what Stephenson said to the Board's witnesses; the problem was a conflict of testimony. To be sure, the Board argues that both Florida Citrus and Tex-O-Kan are manifestations of the same attitude of hostility to findings of the Labor Board. But if the Court of Appeals strayed outside the Universal Camera bounds, it did not do so by discrediting uncontradicted testimony pursuant to Tex-O-Kan. If this Court is of the opinion that the Court of Appeals unjustifiably substituted its own judgment for that of the Board, it ought to say so. The Court of Appeals ought not to be reversed for following a decision it did not follow.(2) Walton, by contrast, squarely presents a Tex-O-Kan problem. Four employees had been discharged and nine more laid off. The Trial Examiner, in each case rejecting company testimony that the employee was a substandard performer, attributed all thirteen to the employees' union activities. The Board agreed. In holding all these findings to be without substantial support, the Court of Appeals pointed out in the case of the four discharges that in addition to the company's witnesses there was evidence, sometimes given by the employee herself, either of unsatisfactory work or of meager union activity, or both. But in reversing the Board with respect to the nine layoffs the court quoted and relied on Tex-O-Kan, pointing out that management testimony, unimpeached, assigned plausible grounds for selecting each employee for layoff, and that the factual bases for these statements were largely uncontradicted.5. Tex-O-Kan and the Substantial Evidence Test.This Court today lays down a dogmatic rule against a Fifth Circuit evidentiary practice authorizing acceptance of plausible, uncontradicted, unimpeached testimony of motivation and apparently holds the Board's power in reviewing the dead record to determine witness credibility to be absolute and unreviewable:"the demeanor of a witness `... may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story ... .'" This statement, torn from context in Judge Learned Hand's opinion in Dyer v. MacDougall, 201 F.2d 265, 269, is elevated into a rule of law that ignores earlier decisions of this Court and effectively insulates many administrative findings from judicial review, contrary to the command of the Labor Management Relations Act and the Administrative Procedure Act that such findings should be set aside if not supported by substantial evidence on the whole record.The cases abound with statements that the determination of credibility is for the trier of fact and is not to be upset on appeal. E. g., Tractor Training Service v. Federal Trade Commission, 227 F.2d 420, 424 (C. A. 9th Cir.); Kitty Clover, Inc., v. Labor Board, 208 F.2d 212, 214 (C. A. 8th Cir.). Professor Jaffe has said "It is generally held that whether made by jury, judge, or agency a determination of credibility is nonreviewable unless there is uncontrovertible documentary evidence or physical fact which contradicts it." Judicial Review: Question of Fact, 69 Harv. L. Rev. 1020, 1031. It is this view that has led some courts to hold that a verdict cannot be directed in favor of a party having the burden of proof if his case rests on the credibility of witnesses, e. g., Giles v. Giles, 204 Mass. 383, 90 N. E. 595. Likewise, Professor Davis speaks of it as settled "that a trial tribunal may disbelieve the only evidence presented and dispose of the case by holding against the party having the burden of proof," Administrative Law Treatise, 29.06, p. 148. Even in reviewing the findings of a trial judge sitting without a jury, where the standard of review permits closer scrutiny by the Court of Appeals, Rule 52 (a) of the Federal Rules of Civil Procedure requires that "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." And in Labor Board v. Pittsburgh S. S. Co., , this Court held that the Board's crediting of all General Counsel's witnesses and discrediting of all respondent's does not indicate bias, so long as none of the credited testimony "carries its own death wound" and none of that which was rejected "carries its own irrefutable truth."The opportunity of the trier of fact to observe the demeanor of witnesses should not be overlooked. But neither should it be overlooked that the Board itself has no opportunity to observe the demeanor of witnesses. Yet the Board is not required to accept a trial examiner's credibility findings, see Universal Camera Corp. v. Labor Board, , and, therefore, neither is the Court of Appeals. Even where the fact-finding function is not divided, "due regard" for the advantage of the trier of fact does not require appellate impotence. Judge Hand's statement in Dyer v. MacDougall was one of logic, not of law; the court went on to affirm a summary judgment against the plaintiff, who presented no evidence and relied on the chance that defendant's witnesses would be disbelieved in their denials - because, despite the logical possibility that demeanor alone might convince of the affirmative, to deny summary judgment would have destroyed the effectiveness of judicial review. Indeed, this Court has never before required complete deference to credibility findings. Labor Board v. Pittsburgh S. S. Co., , does not so hold; a great many findings not so unfounded as to indicate bias are nonetheless reversible error. In Universal Camera Corp. v. Labor Board, , this Court declared that Labor Board findings must be set aside when the record "clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." A "fair estimate of the worth of the testimony" hardly suggests that the Board is free to make an unfair estimate, especially in the light of the decision in Universal Camera that "courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past... . Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds." Professor Davis states frankly that "Administrative determinations of credibility are often set aside because the reviewing court firmly believes that the evidence supporting the determination is clearly less credible than the opposing evidence," Administrative Law Treaties, 29.06, p. 145. Professor Jaffe concedes that his general rule of deference to credibility findings is not unyielding and agrees that this may be proper: "even on a credibility issue we should probably not tolerate the intuitive `hunch' where the record evidence overwhelmingly points to the contrary." 69 Harv. L. Rev., at 1032.In fact, Tex-O-Kan is clearly supported by at least two decisions of this Court requiring a trier of fact to accept unimpeached testimony not contradicted by substantial evidence in the record. In Dickinson v. United States, , a draft board had classified petitioner I-A for Selective Service purposes despite his uncontradicted testimony, letters, and an affidavit that he was an ordained minister exempted from service. Notwithstanding its holding that such an order was subject to more limited scrutiny than most agency orders, the Court reversed his conviction for refusing to report for induction:"The court below in affirming the conviction apparently thought the local board was free to disbelieve Dickinson's testimonial and documentary evidence even in the absence of any impeaching or contradictory evidence... . But when the uncontroverted evidence supporting a registrant's claim places him prima facie within the statutory exemption, dismissal of the claim solely on the basis of suspicion and speculation is both contrary to the spirit of the Act and foreign to our concepts of justice." 346 U.S., at 396-397. In Chesapeake & Ohio R. Co. v. Martin, , the Court reversed a trial judge's refusal to sustain a demurrer to the evidence on the ground that a complete defense was established by uncontradicted, unimpeached testimony. Quoting at length from cases in other courts upholding appellate review of credibility determinations, the Court concluded: "We recognize the general rule, of course, as stated by both courts below, that the question of the credibility of witnesses is one for the jury alone; but this does not mean that the jury is at liberty, under the guise of passing upon the credibility of a witness, to disregard his testimony, when from no reasonable point of view is it open to doubt." 283 U.S., at 216. In short, the Court of Appeals was entitled to come to the conclusion to which it came, for neither the Board nor the reviewing court was bound by the Examiner's findings on credibility. I do not think the Court of Appeals applied an erroneous standard of review or grossly misapplied the correct standard, and, therefore, since it is not for this Court to "pass on the Board's conclusions in the first instance or to make an independent review of the review by the Court of Appeals," Labor Board v. Pittsburgh S. S. Co., , I would either affirm the cases or, preferably, dismiss the writs as improvidently granted. |
0 | Petitioner, who is Executive Director of the National Council of American-Soviet Friendship, Inc., was convicted in the District of Columbia of violating R. S. 102, 2 U.S.C. 192, by willfully refusing to produce certain documents before the Committee on Un-American Activities of the House of Representatives in compliance with a subpoena duly served upon him. On voir dire examination, counsel for petitioner was not permitted to question government employees on the jury panel with specific reference to the possible influence of Executive Order 9835, the so-called "Loyalty Order," on their ability to render a just and impartial verdict; and four government employees were permitted to serve on the jury over his objection. Held: The conviction is reversed because of this denial of an opportunity to prove actual bias on the part of the government employees who served on the jury. P. 259. App. D.C. 172, 176 F.2d 54, reversed. Petitioner, who is Executive Director of the National Council of American-Soviet Friendship, Inc., was indicted in the District of Columbia for violating R. S. 102, 2 U.S.C. 192, by willfully refusing to produce certain documents before the Committee on Un-American Activities of the House of Representatives in compliance with the subpoena duly served upon him. Four government employees served on the jury over his objection, and he was convicted. The Court of Appeals affirmed. App. D.C. 172, 176 F.2d 54. Certiorari granted and conviction reversed, p. 259.Abraham J. Isserman, David Rein and Joseph Forer for petitioner. Solicitor General Perlman, Assistant Attorney General Campbell and Robert S. Erdahl for the United States.Briefs of amici curiae supporting petitioner were filed by William L. Standard for the Committee for a Democratic Far Eastern Policy and for the Congress of American Women; Victor Rabinowitz, Nathan Witt and Leonard B. Boudin for the American Communications Association (CIO) et al.; Leo J. Linder for the Methodist Federation for Social Action; Lester M. Levin for the National Council of the Arts, Sciences and Professions; and John J. Abt for the Progressive Party of America et al.PER CURIAM.In this case the trial court did not permit counsel for petitioner to interrogate prospective government employee jurors upon voir dire examination with specific reference to the possible influence of the "Loyalty Order," Executive Order No. 9835, on their ability to render a just and impartial verdict. Such questioning was permitted in Dennis v. United States, ante, p. 162; see n. 4 of the Court's opinion, ante, pp. 170-171.We said in Dennis that "Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." Ante, pp. 171-172. Since that opportunity was denied in this case, the petition for writ of certiorari is granted and the judgment of the Court of Appeals is reversed. Reversed.MR. JUSTICE BLACK and MR. JUSTICE FRANKFURTER concur in the reversal for the reasons expressed in their opinions in Dennis v. United States, ante, p. 162.MR. JUSTICE DOUGLAS concurs in the reversal of the judgment. Since, however, counsel requested that all government employees be excluded from the jury in these cases, he thinks the request should have been granted for the reasons stated by the dissenting Justices in Frazier v. United States, , and in Dennis v. United States, ante, p. 162.MR. JUSTICE CLARK took no part in the consideration or decision of this case. |
1 | Petitioner brought this suit on behalf of her daughters in the District Court, alleging federal jurisdiction based on the diversity of citizenship provision of 28 U.S.C. 1332, and seeking monetary damages for alleged torts committed against the girls by their father and his female companion, the respondents here. The court granted respondents' motion to dismiss without prejudice, ruling in the alternative that it lacked jurisdiction because the case fell within the "domestic relations" exception to diversity jurisdiction and that its decision to dismiss was justified under the abstention principles announced in Younger v. Harris, . The Court of Appeals affirmed.Held: 1. A domestic relations exception to federal diversity jurisdiction exists as a matter of statutory construction. Pp. 3-11. (a) The exception stems from Barber v. Barber, 21 How. 582, 584, in which the Court announced in dicta, without citation of authority or discussion of foundation, that federal courts have no jurisdiction over suits for divorce or the allowance of alimony. The lower federal courts have ever since recognized a limitation on their jurisdiction based on that statement, and this Court is unwilling to cast aside an understood rule that has existed for nearly a century and a half. Pp. 693-695. (b) An examination of Article III, 2, of the Constitution and of Barber and its progeny makes clear that the Constitution does not mandate the exclusion of domestic relations cases from federal court jurisdiction. Rather, the origins of the exception lie in the statutory requirements for diversity jurisdiction. De la Rama v. De la Rama, . Pp. 695-697. (c) That the domestic relations exception exists is demonstrated by the inclusion of the defining phrase, "all suits of a civil nature at common law or in equity," in the pre-1948 versions of the diversity statute, by Barber's implicit interpretation of that phrase to exclude divorce and alimony actions, and by Congress' silent acceptance of this construction for nearly a century. Considerations of stare decisis have particular strength in this context, where the legislative power is implicated, and Congress remains free to alter what this Court has done. Patterson v. McLean Credit Union, . Furthermore, it may be presumed that Congress amended the diversity statute in 1948 to replace the law/equity distinction with 1332's "all civil actions" phrase with full cognizance of the Court's longstanding interpretation of the prior statutes, and that, absent any indication of an intent to the contrary, Congress adopted that interpretation in reenacting the statute. Pp. 697-701. 2. The domestic relations exception does not permit a district court to refuse to exercise diversity jurisdiction over a tort action for damages. The exception, as articulated by this Court since Barber, encompasses only cases involving the issuance of a divorce, alimony, or child custody decree. As so limited, the exception's validity must be reaffirmed, given the long passage of time without any expression of congressional dissatisfaction and sound policy considerations of judicial economy and expertise. Because this lawsuit in no way seeks a divorce, alimony, or child custody decree, the Court of Appeals erred by affirming the District Court's invocation of the domestic relations exception. Federal subject matter jurisdiction pursuant to 1332 is proper in this case. Pp. 701-704. 3. The District Court erred in abstaining from exercising jurisdiction under the Younger doctrine. Although this Court has extended Younger abstention to the civil context, it has never applied the notions of comity so critical to Younger where, as here, no proceeding was pending in state tribunals. Similarly, while it is not inconceivable that, in certain circumstances, the abstention principles developed in Burford v. Sun Oil Co., , might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody, such abstention is inappropriate here, where the status of the domestic relationship has been determined as a matter of state law and, in any event, has no bearing on the underlying torts alleged. Pp. 704-706. 934 F.2d 1262 (CA 5 1991), reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 707. STEVENS, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post,717.Richard Ducote argued the cause aand filed a brief for petitioner. Paul Weidenfeld argued the cause for respondents. With him on the brief was Samuel S. Dalton.* [Footnote *] Marcia Robinson Lowry, Steven R. Shapiro, and John A. Powell filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.JUSTICE WHITE delivered the opinion of the Court.This case presents the issue whether the federal courts have jurisdiction or should abstain in a case involving alleged torts committed by the former husband of petitioner and his female companion against petitioner's children, when the sole basis for federal jurisdiction is the diversity-of-citizenship provision of 28 U.S.C. 1332.IPetitioner Carol Ankenbrandt, a citizen of Missouri, brought this lawsuit on September 26, 1989, on behalf of her daughters L.R. and S.R. against respondents Jon A. Richards and Debra Kesler, citizens of Louisiana, in the United States District Court for the Eastern District of Louisiana. Alleging federal jurisdiction based on the diversity-of-citizenship provision of 1332, Ankenbrandt's complaint sought monetary damages for alleged sexual and physical abuse of the children committed by Richards and Kesler. Richards is the divorced father of the children, and Kesler his female companion.1 On December 10, 1990, the District Court granted respondents' motion to dismiss this lawsuit. Citing In re Burrus, , for the proposition that [t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States, the court concluded that this case fell within what has become known as the "domestic relations" exception to diversity jurisdiction, and that it lacked jurisdiction over the case. The court also invoked the abstention principles announced in Younger v. Harris, , to justify its decision to dismiss the complaint without prejudice. No. 89-4244, 1990 WL 211545 (ED La., Dec. 10, 1990). The Court of Appeals affirmed in an unpublished opinion. No. 91-3037 (CA5, May 31, 1991), judgt. order reported at 934 F.2d 1262.We granted certiorari limited to the following questions: "(1) Is there a domestic relations exception to federal jurisdiction? (2) If so, does it permit a district court to abstain from exercising diversity jurisdiction over a tort action for damages?"2 and "(3) Did the District Court in this case err in abstaining from exercising jurisdiction under the doctrine of Younger v. Harris?" . We address each of these issues in turn.IIThe domestic relations exception upon which the courts below relied to decline jurisdiction has been invoked often by the lower federal courts. The seeming authority for doing so originally stemmed from the announcement in Barber v. Barber, 21 How. 582 (1859), that the federal courts have no jurisdiction over suits for divorce or the allowance of alimony. In that case, the Court heard a suit in equity brought by a wife (by her next friend) in Federal District Court pursuant to diversity jurisdiction against her former husband. She sought to enforce a decree from a New York state court, which had granted a divorce and awarded her alimony. The former husband thereupon moved to Wisconsin to place himself beyond the New York courts' jurisdiction so that the divorce decree there could not be enforced against him; he then sued for divorce in a Wisconsin court, representing to that court that his wife had abandoned him and failing to disclose the existence of the New York decree. In a suit brought by the former wife in Wisconsin Federal District Court, the former husband alleged that the court lacked jurisdiction. The court accepted jurisdiction and gave judgment for the divorced wife.On appeal, it was argued that the District Court lacked jurisdiction on two grounds: first, that there was no diversity of citizenship, because, although divorced, the wife's citizenship necessarily remained that of her former husband; and second, that the whole subject of divorce and alimony, including a suit to enforce an alimony decree, was exclusively ecclesiastical at the time of the adoption of the Constitution, and that the Constitution therefore placed the whole subject of divorce and alimony beyond the jurisdiction of the United States courts. Over the dissent of three Justices, the Court rejected both arguments. After an exhaustive survey of the authorities, the Court concluded that a divorced wife could acquire a citizenship separate from that of her former husband and that a suit to enforce an alimony decree rested within the federal courts' equity jurisdiction. The Court reached these conclusions after summarily dismissing the former husband's contention that the case involved a subject matter outside the federal courts' jurisdiction. In so stating, however, the Court also announced the following limitation on federal jurisdiction: "Our first remark is - and we wish it to be remembered - that this is not a suit asking the court for the allowance of alimony. That has been done by a court of competent jurisdiction. The court in Wisconsin was asked to interfere to prevent that decree from being defeated by fraud. "We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board." Barber, supra, at 584. As a general matter, the dissenters agreed with these statements, but took issue with the Court's holding that the instant action to enforce an alimony decree was within the equity jurisdiction of the federal courts.The statements disclaiming jurisdiction over divorce and alimony decree suits, though technically dicta, formed the basis for excluding "domestic relations" cases from the jurisdiction of the lower federal courts, a jurisdictional limitation those courts have recognized ever since. The Barber Court, however, cited no authority, and did not discuss the foundation for its announcement. Since that time, the Court has dealt only occasionally with the domestic relations limitation on federal court jurisdiction, and it has never addressed the basis for such a limitation. Because we are unwilling to cast aside an understood rule that has been recognized for nearly a century and a half, we feel compelled to explain why we will continue to recognize this limitation on federal jurisdiction.ACounsel argued in Barber that the Constitution prohibited federal courts from exercising jurisdiction over domestic relations cases. Brief for Appellant in Barber v. Barber, D. T. 1858, No. 44, pp. 4-5. An examination of Article III, Barber itself, and our cases since Barber makes clear that the Constitution does not exclude domestic relations cases from the jurisdiction otherwise granted by statute to the federal courts.Article III, 2, of the Constitution provides in pertinent part: "Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction; - to Controversies to which the United States shall be a Party; - to Controversies between two or more States; - between a State and Citizens of another State; - between Citizens of different States; - between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." This section delineates the absolute limits on the federal courts' jurisdiction. But in articulating three different terms to define jurisdiction - "Cases, in Law and Equity," "Cases," and "Controversies" - this provision contains no limitation on subjects of a domestic relations nature. Nor did Barber purport to ground the domestic relations exception in these constitutional limits on federal jurisdiction. The Court's discussion of federal judicial power to hear suits of a domestic relations nature contains no mention of the Constitution, see Barber, at 584, and it is logical to presume that the Court based its statement limiting such power on narrower statutory, rather than broader constitutional, grounds. Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, .Subsequent decisions confirm that Barber was not relying on constitutional limits in justifying the exception. In one such case, for instance, the Court stated the "long established rule" that federal courts lack jurisdiction over certain domestic relations matters as having been based on the assumptions that husband and wife cannot usually be citizens of different States, so long as the marriage relation continues (a rule which has been somewhat relaxed in recent cases), and for the further reason that a suit for divorce in itself involves no pecuniary value. De la Rama v. De la Rama, . Since Article III contains no monetary limit on suits brought pursuant to federal diversity jurisdiction, De la Rama's articulation of the "rule" in terms of the statutory requirements for diversity jurisdiction further supports the view that the exception is not grounded in the Constitution.Moreover, even while citing with approval the Barber language purporting to limit the jurisdiction of the federal courts over domestic relations matters, the Court has heard appeals from territorial courts involving divorce, see, e.g., De la Rama, supra; Simms v. Simms, , and has upheld the exercise of original jurisdiction by federal courts in the District of Columbia to decide divorce actions, see, e.g., Glidden Co. v. Zdanok, , n. 54 (1962). Thus, even were the statements in De la Rama referring to the statutory prerequisites of diversity jurisdiction alone not persuasive testament to the statutory origins of the rule, by hearing appeals from legislative, or Article I, courts, this Court implicitly has made clear its understanding that the source of the constraint on jurisdiction from Barber was not Article III; otherwise the Court itself would have lacked jurisdiction over appeals from these legislative courts. See National Mut. Ins Co. v. Tidewater Transfer Co., (Vinson, C.J., dissenting) ("We can no more review a legislative court's decision of a case which is not among those enumerated in Art. III than we can hear a case from a state court involving purely state law questions"). We therefore have no difficulty concluding that, when the Barber Court "disclaim[ed] altogether any jurisdiction in the courts of the United States upon the subject of divorce," 21 How., at 584, it was not basing its statement on the Constitution.3 BThat Article III, 2, does not mandate the exclusion of domestic relations cases from federal court jurisdiction, however, does not mean that such courts necessarily must retain and exercise jurisdiction over such cases. Other constitutional provisions explain why this is so. Article I, 8, cl. 9, for example, authorizes Congress "[t]o constitute Tribunals inferior to the supreme Court" and Article III, 1, states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The Court's cases state the rule that if inferior federal courts were created, [Congress was not] required to invest them with all the jurisdiction it was authorized to bestow under Art. III. Palmore v. United States, . This position has held constant since at least 1845, when the Court stated that the judicial power of the United States ... is (except in enumerated instances, applicable exclusively to this Court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) ... and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. Cary v. Curtis, 3 How. 236, 245. See Sheldon v. Sill, 8 How. 441 (1850); Plaquemines Tropical Fruit Co. v. Henderson, ; Kline v. Burke Constr. Co., ; Lockerty v. Phillips, . We thus turn our attention to the relevant jurisdictional statutes.The Judiciary Act of 1789 provided that "the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and ... an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State." Act of Sept. 24, 1789, 11, 1 Stat. 73, 78 (emphasis added). The defining phrase, "all suits of a civil nature at common law or in equity," remained a key element of statutory provisions demarcating the terms of diversity jurisdiction until 1948, when Congress amended the diversity jurisdiction provision to eliminate this phrase and replace in its stead the term "all civil actions." 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U.S.C. 1332.The Barber majority itself did not expressly refer to the diversity statute's use of the limitation on "suits of a civil nature at common law or in equity." The dissenters in Barber, however, implicitly made such a reference, for they suggested that the federal courts had no power over certain domestic relations actions because the court of chancery lacked authority to issue divorce and alimony decrees. Stating that [t]he origin and the extent of [the federal courts'] jurisdiction must be sought in the laws of the United States, and in the settled rules and principles by which those laws have bound them, the dissenters contended that, as the jurisdiction of the chancery in England does not extend to or embrace the subjects of divorce and alimony, and as the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England, all power or cognizance with respect to those subjects by the courts of the United States in chancery is equally excluded. Barber, 21 How. at 605 (Daniel, J., dissenting). Hence, in the dissenters' view, a suit seeking such relief would not fall within the statutory language "all suits of a civil nature at common law or in equity." Because the Barber Court did not disagree with this reason for accepting the jurisdictional limitation over the issuance of divorce and alimony decrees, it may be inferred fairly that the jurisdictional limitation recognized by the Court rested on this statutory basis, and that the disagreement between the Court and the dissenters thus centered only on the extent of the limitation.We have no occasion here to join the historical debate over whether the English court of chancery had jurisdiction to handle certain domestic relations matters, though we note that commentators have found some support for the Barber majority's interpretation.4 Certainly it was not unprecedented at the time for the Court to infer, from what it understood to be English chancery practice, some guide to the meaning of the 1789 Act's jurisdictional grant. See, e.g., Robinson v. Campbell, 3 Wheat. 212, 221-222 (1818). We thus are content to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which it was seemingly based, but rather on Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to "suits of a civil nature at common law or in equity." As the court in Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 514 (CA2 1973), observed: "More than a century has elapsed since the Barber dictum without any intimation of Congressional dissatisfaction... . Whatever Article III may or may not permit, we thus accept the Barber dictum as a correct interpretation of the Congressional grant." Considerations of stare decisis have particular strength in this context, where "the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union, .When Congress amended the diversity statute in 1948 to replace the law/equity distinction with the phrase "all civil actions," we presume Congress did so with full cognizance of the Court's nearly century-long interpretation of the prior statutes, which had construed the statutory diversity jurisdiction to contain an exception for certain domestic relations matters. With respect to the 1948 amendment, the Court has previously stated that no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed. Fourco Glass Co. v. Transmirra Products Corp., ; see also Finley v. United States, . With respect to such a longstanding and well-known construction of the diversity statute, and where Congress made substantive changes to the statute in other respects, see 28 U.S.C. 1332 note, we presume, absent any indication that Congress intended to alter this exception, see ibid.; Advisory Committee's Note 3 to Fed. Rule Civ. Proc. 2, 28 U.S.C. App. p. 555, that Congress "adopt[ed] that interpretation" when it reenacted the diversity statute. Lorillard v. Pons, .5 IIIIn the more than 100 years since this Court laid the seeds for the development of the domestic relations exception, the lower federal courts have applied it in a variety of circumstances. See, e.g., cases cited in n. 1, supra. Many of these applications go well beyond the circumscribed situations posed by Barber and its progeny. Barber itself disclaimed federal jurisdiction over a narrow range of domestic relations issues involving the granting of a divorce and a decree of alimony, see 21 How., at 584, and stated the limits on federal court power to intervene prior to the rendering of such orders: "It is, that, when a court of competent jurisdiction over the subject matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband, that courts of equity will interfere to prevent the decree from being defeated by fraud. The interference, however, is limited to cases in which alimony has been decreed; then only to the extent of what is due, and always to cases in which no appeal is pending from the decree for the divorce or for alimony." Id., at 591. The Barber Court thus did not intend to strip the federal courts of authority to hear cases arising from the domestic relations of persons unless they seek the granting or modification of a divorce or alimony decree. The holding of the case itself sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction. Contrary to the Barber dissenters' position, the enforcement of such validly obtained orders does not "regulate the domestic relations of society" and produce an "inquisitorial authority" in which federal tribunals enter the habitations and even into the chambers and nurseries of private families, and inquire into and pronounce upon the morals and habits and affections or antipathies of the members of every household. Id., at 602 (Daniel, J., dissenting). And from the conclusion that the federal courts lacked jurisdiction to issue divorce and alimony decrees, there was no dissent. See Barber, supra, at 604 (Daniel, J., dissenting) (noting that "[u]pon questions of settlement or of contract connected with marriages, the court of chancery will undertake the enforcement of such contracts, but does not decree alimony as such, and independently of such contracts"). See also Simms v. Simms, (stating that "[i]t may therefore be assumed as indubitable that the Circuit Courts of the United States have no jurisdiction, either of suits for divorce, or of claims for alimony, whether made in a suit for divorce, or by an original proceeding in equity, before a decree for such alimony in a state court").Subsequently, this Court expanded the domestic relations exception to include decrees in child custody cases. In a child custody case brought pursuant to a writ of habeas corpus, for instance, the Court held void a writ issued by a Federal District Court to restore a child to the custody of the father. "As to the right to the control and possession of this child, as it is contested by its father and its grandfather, it is one in regard to which neither the Congress of the United States nor any authority of the United States has any special jurisdiction." In re Burrus, . Although In re Burrus technically did not involve a construction of the diversity statute, as we understand Barber to have done, its statement that "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States," id., at 593-594, has been interpreted by the federal courts to apply with equal vigor in suits brought pursuant to diversity jurisdiction. See, e.g., Bennett v. BennettApp. D.C. 90, 93, 682 F.2d 1039, 1042 (1982); Solomon v. Solomon, 516 F.2d 1018, 1025 (CA3 1975); Hernstadt v. Hernstadt, 373 F.2d 316, 317 (CA2 1967); see generally 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3609, pp. 477-479, nn. 28-32 (1984). This application is consistent with Barber's directive to limit federal courts' exercise of diversity jurisdiction over suits for divorce and alimony decrees. See Barber, 21 How. at 584.6 We conclude, therefore, that the domestic relations exception, as articulated by this Court since Barber, divests the federal courts of power to issue divorce, alimony, and child custody decrees. Given the long passage of time without any expression of congressional dissatisfaction, we have no trouble today reaffirming the validity of the exception as it pertains to divorce and alimony decrees and child custody orders.Not only is our conclusion rooted in respect for this long-held understanding, it is also supported by sound policy considerations. Issuance of decrees of this type not infrequently involves retention of jurisdiction by the court and deployment of social workers to monitor compliance. As a matter of judicial economy, state courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. Moreover, as a matter of judicial expertise, it makes far more sense to retain the rule that federal courts lack power to issue these types of decrees because of the special proficiency developed by state tribunals over the past century and a half in handling issues that arise in the granting of such decrees. See Lloyd v. Loeffler, 694 F.2d 489, 492 (CA7 1982).By concluding, as we do, that the domestic relations exception encompasses only cases involving the issuance of a divorce, alimony, or child custody decree, we necessarily find that the Court of Appeals erred by affirming the District Court's invocation of this exception. This lawsuit in no way seeks such a decree; rather, it alleges that respondents Richards and Kesler committed torts against L.R. and S.R., Ankenbrandt's children by Richards. Federal subject matter jurisdiction pursuant to 1332 thus is proper in this case.7 We now address whether, even though subject matter jurisdiction might be proper, sufficient grounds exist to warrant abstention from the exercise of that jurisdiction.IVThe Court of Appeals, as did the District Court, stated abstention as an alternative ground for its holding. The District Court quoted another federal court to the effect that "`[a]bstention, that doctrine designed to promote federal-state comity, is required when to render a decision would disrupt the establishment of a coherent state policy.'" App. to Pet. for Cert. A-6 (quoting Zaubi v. Hoejme, 530 F.Supp. 831, 836 (WD Pa. 1980)). It is axiomatic, however, that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, . Abstention rarely should be invoked, because the federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." Id., at 817.The courts below cited Younger v. Harris, , to support their holdings to abstain in this case. In so doing, the courts clearly erred. Younger itself held that, absent unusual circumstances, a federal court could not interfere with a pending state criminal prosecution. Id., at 54. Though we have extended Younger abstention to the civil context, see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Assn., ; Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., ; Pennzoil Co. v. Texaco Inc., , we have never applied the notions of comity so critical to Younger's "Our Federalism" when no state proceeding was pending nor any assertion of important state interests made. In this case, there is no allegation by respondents of any pending state proceedings, and Ankenbrandt contends that such proceedings ended prior to her filing this lawsuit. Absent any pending proceeding in state tribunals, therefore, application by the lower courts of Younger abstention was clearly erroneous.It is not inconceivable, however, that, in certain circumstances, the abstention principles developed in Burford v. Sun Oil Co., , might be relevant in a case involving elements of the domestic relationship even when the parties do not seek divorce, alimony, or child custody. This would be so when a case presents difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar. Colorado River Water Conservation Dist., supra, at 814. Such might well be the case if a federal suit were filed prior to effectuation of a divorce, alimony, or child custody decree, and the suit depended on a determination of the status of the parties. Where, as here, the status of the domestic relationship has been determined as a matter of state law, and in any event has no bearing on the underlying torts alleged, we have no difficulty concluding that Burford abstention is inappropriate in this case.8 VWe thus conclude that the Court of Appeals erred by affirming the District Court's rulings to decline jurisdiction based on the domestic relations exception to diversity jurisdiction and to abstain under the doctrine of Younger v. Harris, supra. The exception has no place in a suit such as this one, in which a former spouse sues another on behalf of children alleged to have been abused. Because the allegations in this complaint do not request the District Court to issue a divorce, alimony, or child custody decree, we hold that the suit is appropriate for the exercise of 1332 jurisdiction, given the existence of diverse citizenship between petitioner and respondents and the pleading of the relevant amount in controversy. Accordingly, we reverse the decision of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered. |
0 | Petitioner was convicted of a narcotics violation in a California state court partly through evidence which the police seized in a warrantless search of his car a week after his arrest. Pending forfeiture proceedings the car had been impounded "as evidence" pursuant to a statutory provision for the seizure and forfeiture of vehicles used in violation of the narcotics laws. The state appellate court, in a decision which the supreme court declined to review, held the search and seizure unconstitutional under Preston v. United States, , but held the evidentiary error harmless under the State Constitution's harmless-error provision. Held: Under the circumstances of this case, the police did not violate the Fourth Amendment by making a search, closely related to the reason petitioner was arrested, of a car which they validly held for use as evidence in a forfeiture proceeding. Preston, supra, distinguished. Pp. 59-62. 234 Cal. App. 2d 587, 44 Cal. Rptr. 483, affirmed.Michael Traynor, by appointment of the Court, , argued the cause and filed briefs for petitioner.Albert W. Harris, Jr., Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and Edward P. O'Brien, Deputy Attorney General.MR. JUSTICE BLACK delivered the opinion of the Court.Petitioner was convicted in a California state court of selling heroin to a police informer. The conviction rested in part on the introduction in evidence of a small piece of a brown paper sack seized by police without a warrant from the glove compartment of an automobile which police, upon petitioner's arrest, had impounded and were holding in a garage. The search occurred a week after the arrest of petitioner. Petitioner appealed his conviction to the California District Court of Appeal which, considering itself bound by our holding and opinion in Preston v. United States, , held that the search and seizure violated the Fourth Amendment's ban of unreasonable searches and seizures. That court went on, however, to determine that this was harmless error under Art. VI, 4 1/2, of California's Constitution which provides that judgments should not be set aside or reversed unless the court is of the opinion that the error "resulted in a miscarriage of justice." 234 Cal. App. 2d 587, 44 Cal. Rptr. 483. The California Supreme Court declined to hear the case. We granted certiorari along with Chapman v. California, ante, p. 18, to consider whether the California harmless-error constitutional provision could be used in this way to ignore the alleged federal constitutional error. . We have today passed upon the question in Chapman, but do not reach it in this case because we are satisfied that the lower court erroneously decided that our Preston case required that this search be held an unreasonable one within the meaning of the Fourth Amendment.We made it clear in Preston that whether a search and seizure is unreasonable within the meaning of the Fourth Amendment depends upon the facts and circumstances of each case and pointed out, in particular, that searches of cars that are constantly movable may make the search of a car without a warrant a reasonable one although the result might be the opposite in a search of a home, a store, or other fixed piece of property. 376 U.S., at 366-367. In Preston the search was sought to be justified primarily on the ground that it was incidental to and part of a lawful arrest. There we said that "[o]nce an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest." Id., at 367. In the Preston case, it was alternatively argued that the warrantless search, after the arrest was over and while Preston's car was being held for him by the police, was justified because the officers had probable cause to believe the car was stolen. But the police arrested Preston for vagrancy, not theft, and no claim was made that the police had authority to hold his car on that charge. The search was therefore to be treated as though his car was in his own or his agent's possession, safe from intrusions by the police or anyone else. The situation involving petitioner's car is quite different.Here, California's Attorney General concedes that the search was not incident to an arrest. It is argued, however, that the search was reasonable on other grounds. Section 11611 of the California Health & Safety Code provides that any officer making an arrest for a narcotics violation shall seize and deliver to the State Division of Narcotic Enforcement any vehicle used to store, conceal, transport, sell or facilitate the possession of narcotics, such vehicle "to be held as evidence until a forfeiture has been declared or a release ordered."1 (Emphasis supplied.) Petitioner's vehicle, which evidence showed had been used to carry on his narcotics possession and transportation, was impounded by the officers and their duty required that it be kept "as evidence" until forfeiture proceedings were carried to a conclusion. The lower court concluded, as a matter of state law, that the state forfeiture statute did not by "clear and express language" authorize the officers to search petitioner's car. 234 Cal. App. 2d, at 598, 44 Cal. Rptr., at 491. But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one. While it is true, as the lower court said, that "lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it," ibid., the reason for and nature of the custody may constitutionally justify the search. Preston was arrested for vagrancy. An arresting officer took his car to the station rather than just leaving it on the street. It was not suggested that this was done other than for Preston's convenience or that the police had any right to impound the car and keep it from Preston or whomever he might send for it. The fact that the police had custody of Preston's car was totally unrelated to the vagrancy charge for which they arrested him. So was their subsequent search of the car. This case is not Preston, nor is it controlled by it. Here the officers seized petitioner's car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car - whether the State had "legal title" to it or not - was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner's car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." United States v. Rabinowitz, . Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.Our holding, of course, does not affect the State's power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without review by us, to apply its own state harmless-error rule to such errors of state law. There being no federal constitutional error here, there is no need for us to determine whether the lower court properly applied its state harmless-error rule.2 Affirmed.[Footnote 1] Cal. Health & Safety Code 11610 provides: "The interest of any registered owner of a vehicle used to unlawfully transport or facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept, deposited, or concealed or which is used to facilitate the unlawful keeping, depositing or concealment of any narcotic, or in which any narcotic is unlawfully possessed by an occupant thereof or which is used to facilitate the unlawful possession of any narcotic by an occupant thereof, shall be forfeited to the State."[Footnote 2] Petitioner also presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we consider absolutely devoid of merit.MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN and MR. JUSTICE FORTAS concur, dissenting.When petitioner was arrested, his auto was seized by officers, pursuant to the California Health & Safety Code, 11611. That section authorizes a state officer making an arrest for violation of the narcotics laws to seize a "vehicle used to unlawfully transport any narcotic or to facilitate the unlawful transportation of any narcotic, or in which any narcotic is unlawfully kept," and directs the officer to deliver the vehicle to the Division of Narcotic Enforcement "to be held as evidence until a forfeiture has been declared or a release ordered." About a week after petitioner's arrest, a state agent searched the car, which was stored at a towing service, and discovered a piece of brown paper which appeared to have been torn from a grocery bag. This piece of paper was introduced at the trial, along with two bundles of heroin, which petitioner allegedly sold an informer, and the brown paper in which the heroin had been wrapped.1 Petitioner was indicted and convicted of selling heroin. A judgment of forfeiture of petitioner's car was entered the day after the termination of his trial.The California District Court of Appeal held that the piece of paper bag was the product of an illegal search, 234 Cal. App. 2d 587, 44 Cal. Rptr. 483. First, the state court held that the State could not rely on the subsequent forfeiture to justify the search. It realistically noted that the State's title could not relate back to the time of the seizure until after a judicial declaration of forfeiture. Since the forfeiture judgment was not entered until after petitioner's trial, the State could not rely on it to justify the search. Id., at 596-597, 44 Cal. Rptr., at 489-490. Second, the court held that although the automobile was in the lawful custody of the officers at the time of the search, 11611 of the Health & Safety Code did not authorize the officers to search the car. Id., at 597, 44 Cal. Rptr., at 490. Since the search was not pursuant to a warrant, and since it was not incidental to petitioner's arrest, it was illegal.Hence the fact that the car was being held "as evidence" did not as a matter of state law give the officers more dominion over it than the officers in Preston v. United States, , had over the car in their custody.In Preston, petitioner and others were arrested for vagrancy after they failed to give an acceptable explanation of their presence in a parked car late at night. They were taken to the police station, and the car was taken first to the station and then to a garage. After the men were booked, police officers went to the garage, searched the car without a warrant, and found evidence incriminating petitioner and the others of conspiracy to rob a federally insured bank.In the instant case petitioner was arrested, his car taken to a garage and searched a week after his arrest, likewise without a warrant. As in Preston, the search cannot be justified as incidental to a lawful arrest. Nor can this case be distinguished from Preston on the ground that one car was lawfully in police custody and the other not. In Preston, the fact that the car was in lawful police custody did not legalize the search without a warrant. Since the California court held that the Health & Safety Code did not authorize a search of a car impounded under its provisions, the case is on all fours with Preston so far as police custody is concerned. If custody of the car is relevant at all, it militates against the reasonableness of the search. As the Court said in Preston: "[S]ince the men were under arrest at the police station and the car was in police custody at a garage, [there was no] danger that the car would be moved out of the locality or jurisdiction." 376 U.S., at 368. Moreover, the claim that the search was not illegal because the car had been forfeited to the State is foreclosed by the state court's holding that, under the circumstances, the forfeiture could not relate back to the date of the seizure. The state court's interpretation of its own statute will not be upset by this Court. Guaranty Trust Co. v. Blodgett, . To repeat, this case is on all fours with Preston. For in each the search was of a car "validly" held by officers, to use the Court's expression. Preston, of course, was a federal case, while this is a state case. But the Fourth Amendment with all its sanctions applies to the States as well as to the Federal Government. Mapp v. Ohio, .I see only two ways to explain the Court's opinion. One is that it overrules Preston sub silentio. There are those who do not like Preston. I think, however, it states a healthy rule, protecting the zone of privacy of the individual as prescribed by the Fourth Amendment. These days police often take possession of cars, towing them away when improperly parked. Those cars are "validly" held by the police. Yet if they can be searched without a warrant, the precincts of the individual are invaded and the barriers to privacy breached. Unless the search is incident to an arrest, I would insist that the police obtain a warrant to search a man's car just as they must do when they search his home.If the present decision does not overrule Preston, it can perhaps be rationalized on one other ground. There is the view that when the Bill of Rights is applied to the States by reason of the Fourteenth Amendment, a watered-down version is used. In that view "due process" qualifies all provisions of the Bill of Rights. Today's decision is perhaps explicable in those terms. But I also reject that view. "Unreasonable searches and seizures" as used in the Fourth Amendment, "self-incrimination" as used with reference to the Fifth, "freedom of speech" as used in the First, and the like, mean the same in a state as in a federal case.2 [Footnote 1] About four months after the arrest, another agent searched the car and found a marijuana seed, which was introduced at trial. There is no objection to this evidence since there was no jury and the trial judge indicated that the marijuana seed was irrelevant to the charge for which petitioner was being tried.[Footnote 2] That view was expressly approved by the Court in Malloy v. Hogan, . |
1 | Opinion announced September 29, 1958. Fn NOTE: The per curiam opinion announced on September 12, 1958, and printed in a footnote, post, p. 5, applies not only to this case but also to No. 1, Misc., August Special Term, 1958, Aaron et al. v. Cooper et al., on application for vacation of order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate, for stay of order of the United States District Court for the Eastern District of Arkansas, and for such other orders as petitioners may be entitled to, argued August 28, 1958. Under a plan of gradual desegregation of the races in the public schools of Little Rock, Arkansas, adopted by petitioners and approved by the courts below, respondents, Negro children, were ordered admitted to a previously all-white high school at the beginning of the 1957-1958 school year. Due to actions by the Legislature and Governor of the State opposing desegregation, and to threats of mob violence resulting therefrom, respondents were unable to attend the school until troops were sent and maintained there by the Federal Government for their protection; but they attended the school for the remainder of that school year. Finding that these events had resulted in tensions, bedlam, chaos and turmoil in the school, which disrupted the educational process, the District Court, in June 1958, granted petitioners' request that operation of their plan of desegregation be suspended for two and one-half years, and that respondents be sent back to segregated schools. The Court of Appeals reversed. Held: The judgment of the Court of Appeals is affirmed, and the orders of the District Court enforcing petitioners' plan of desegregation are reinstated, effective immediately. Pp. 4-20. 1. This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution in Brown v. Board of Education, . P. 4. 2. This Court rejects the contention that it should uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify its holding in the Brown case have been further challenged and tested in the courts. P. 4. 3. In many locations, obedience to the duty of desegregation will require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. P. 7. 4. If, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), a District Court concludes that justification exists for not requiring the present nonsegregated admission of all qualified Negro children to public schools, it should scrutinize the program of the school authorities to make sure that they have developed arrangements pointed toward the earliest practicable completion of desegregation, and have taken appropriate steps to put their program into effective operation. P. 7. 5. The petitioners stand in this litigation as the agents of the State, and they cannot assert their good faith as an excuse for delay in implementing the respondents' constitutional rights, when vindication of those rights has been rendered difficult or impossible by the actions of other state officials. Pp. 15-16. 6. The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature, and law and order are not here to be preserved by depriving the Negro children of their constitutional rights. P. 16. 7. The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executives or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Pp. 16-17. 8. The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." P. 18. 9. No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it. P. 18. 10. State support of segregated schools through any arrangement, management, funds or property cannot be squared with the command of the Fourteenth Amendment that no State shall deny to any person within its jurisdiction the equal protection of the laws. P. 19. 257 F.2d 33, affirmed.Richard C. Butler argued the cause for petitioners. With him on the brief were A. F. House and, by special leave of Court, John H. Haley, pro hac vice.Thurgood Marshall argued the cause for respondents. With him on the brief were Wiley A. Branton, William Coleman, Jr., Jack Greenberg and Louis H. Pollak.Solicitor General Rankin, at the invitation of the Court, post, p. 27, argued the cause for the United States, as amicus curiae, urging that the relief sought by respondents should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer. Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, . That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.The case was argued before us on September 11, 1958. On the following day we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, 257 F.2d 33, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F. Supp. 13. The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board's court-approved desegregation program. In order that the School Board might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date.* This opinion of all of the members of the Court embodies those views.The following are the facts and circumstances so far as necessary to show how the legal questions are presented.On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education, . The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, . In the formulation of that decree the Court recognized that good faith compliance with the principles declared in Brown might in some situations "call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision." Id., at 300. The Court went on to state:"Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them. "While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems." 349 U.S., at 300-301. Under such circumstances, the District Courts were directed to require "a prompt and reasonable start toward full compliance," and to take such action as was necessary to bring about the end of racial segregation in the public schools "with all deliberate speed." Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled "Supreme Court Decision - Segregation in Public Schools." In this statement the Board recognized that "It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed." Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that "a large majority of the residents" of Little Rock were of "the belief ... that the Plan, although objectionable in principle," from the point of view of those supporting segregated schools, "was still the best for the interests of all pupils in the District."Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board's plan, Aaron v. Cooper, 143 F. Supp. 855. The Court of Appeals affirmed. 243 F.2d 361. Review of that judgment was not sought here.While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose "in every Constitutional manner the Un-constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court," Ark. Const., Amend. 44, and, through the initiative, a pupil assignment law, Ark. Stat. 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark. Stat. 80-1525, and a law establishing a State Sovereignty Commission, Ark. Stat. 6-801 to 6-824, were enacted by the General Assembly in February 1957.The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken.On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school "off limits" to colored students. As found by the District Court in subsequent proceedings, the Governor's action had not been requested by the school authorities, and was entirely unheralded. The findings were these: "Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." Aaron v. Cooper, 156 F. Supp. 220, 225. The Board's petition for postponement in this proceeding states: "The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and from that date hostility to the Plan was increased and criticism of the officials of the [School] District has become more bitter and unrestrained." The Governor's action caused the School Board to request the Negro students on September 2 not to attend the high school "until the legal dilemma was solved." The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board's request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard "acting pursuant to the Governor's order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students ... from entering," as they continued to do every school day during the following three weeks. 156 F. Supp., at 225.That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court's direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program.Upon completion of the United States Attorney's investigation, he and the Attorney General of the United States, at the District Court's request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court's order. After hearings on the petition, the District Court found that the School Board's plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on September 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F. Supp. 220, affirmed, Faubus v. United States, 254 F.2d 797. The National Guard was then withdrawn from the school.The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F. Supp., at 16. On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board's desegregation program be postponed for a period later suggested by the Board to be two and one-half years.After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of "chaos, bedlam and turmoil"; that there were "repeated incidents of more or less serious violence directed against the Negro students and their property"; that there was "tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters' parents, which inevitably had an adverse effect upon the educational program"; that a school official was threatened with violence; that a "serious financial burden" had been cast on the School District; that the education of the students had suffered "and under existing conditions will continue to suffer"; that the Board would continue to need "military assistance or its equivalent"; that the local police department would not be able "to detail enough men to afford the necessary protection"; and that the situation was "intolerable." 163 F. Supp., at 20-26.The District Court's judgment was dated June 20, 1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court's judgment. At the same time they filed a petition for certiorari in this Court asking us to review the District Court's judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. . The Court of Appeals did not act on the petition for a stay, but, on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, 257 F.2d 33. On August 21, 1958, the Court of Appeals stayed its mandate to permit the School Board to petition this Court for certiorari. Pending the filing of the School Board's petition for certiorari, the Negro respondents, on August 23, 1958, applied to MR. JUSTICE WHITTAKER, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate and also to stay the District Court's judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, , we convened in Special Term on August 28, 1958, and heard oral argument on the respondents' motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals' judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents' application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board's petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11. 1958, post, p. 29, and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion, ante, p. 5.In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue.The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court's decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: "The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace."One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board's good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board's legal position. Had Central High School been under the direct management of the State itself, it could hardly be suggested that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult or impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: "It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution." Buchanan v. Warley, . Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board's difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.The controlling legal principles are plain. The command of the Fourteenth Amendment is that no "State" shall deny to any person within its jurisdiction the equal protection of the laws. "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, ... denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning." Ex parte Virginia, . Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, ; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, ; Shelley v. Kraemer, ; or whatever the guise in which it is taken, see Derrington v. Plummer, 240 F.2d 922; Department of Conservation and Development v. Tate, 231 F.2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted "ingeniously or ingenuously." Smith v. Texas, .What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine. Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State ... ." Ableman v. Booth, 21 How. 506, 524.No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery ... ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases ... ." Sterling v. Constantin, .It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, . The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.[Footnote *] The following was the Court's per curiam opinion:"PER CURIAM."The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, 257 F.2d 33, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course."It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F.2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F. Supp. 13, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, see 143 F. Supp. 855, and September 3, 1957, enforcing the School Board's plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, U.S. 294, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect."The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas." Concurring opinion of MR. JUSTICE FRANKFURTER.* While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court's decree in Brown v. Board of Education, . The Little Rock School Board had embarked on an educational effort "to obtain public acceptance" of its plan. Thus the process of the community's accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted: "14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School." 156 F. Supp. 220, 225. All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty.The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board's and the State's constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State "must ... yield to an authority that is paramount to the State." This language of command to a State is Mr. Justice Holmes', speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler, and Mr. Justice Stone. Wisconsin v. Illinois, .When defiance of law judicially pronounced was last sought to be justified before this Court, views were expressed which are now especially relevant: "The historic phrase `a government of laws and not of men' epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. `A government of laws and not of men' was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment. "But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. `Civilization involves subjection of force to reason, and the agency of this subjection is law.' (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be `as free, impartial, and independent as the lot of humanity will admit.' So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for." United States v. United Mine Workers, (concurring opinion). The duty to abstain from resistance to "the supreme Law of the Land," U.S. Const., Art. VI § 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is "the supreme Law of the Land." (See President Andrew Jackson's Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.), 610, 623.) Particularly is this so where the declaration of what "the supreme Law" commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.The process of ending unconstitutional exclusion of pupils from the common school system - "common" meaning shared alike - solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose - violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim - nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board's request, on the basis of the circumstances that gave rise to it, for a suspension of the Board's non-segregation plan, would be but the beginning of a series of delays calculated to nullify this Court's adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools?That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.Lincoln's appeal to "the better angels of our nature" failed to avert a fratricidal war. But the compassionate wisdom of Lincoln's First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.[Footnote *] [NOTE: This opinion was filed October 6, 1958.] AUGUST 28, 1958. Miscellaneous Order.No. 1, Misc. AARON ET AL. v. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. On application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate and for a stay of the order of the United States District Court for the Eastern District of Arkansas and for such other orders as petitioners may be entitled to. Argued August 28, 1958.Having considered the oral arguments, the Court is in agreement with the view expressed by counsel for the respective parties and by the Solicitor General that petitioners' present application respecting the stay of the mandate of the Court of Appeals and of the order of the District Court of June 21, 1958, necessarily involves consideration of the merits of the Court of Appeals decision reversing the order of Judge Lemley. The Court is advised that the opening date of the High School will be September 15. In light of this, and representations made by counsel for the School Board as to the Board's plan for filing its petition for certiorari, the Court makes the following order:1. The School Board's petition for certiorari may be filed not later than September 8, 1958.2. The briefs of both parties on the merits may be filed not later than September 10, 1958.3. The Solicitor General is invited to file a brief by September 10, 1958, and to present oral argument if he is so advised. 4. The Rules of the Court requiring printing of the petition, briefs, and record are dispensed with.5. Oral argument upon the petition for certiorari is set for September 11, 1958, at twelve o'clock noon.6. Action on the petitioners' application addressed to the stay of the mandate of the Court of Appeals and to the stay of the order of the District Court of June 21, 1958, is deferred pending the disposition of the petition for certiorari duly filed in accordance with the foregoing schedule.Thurgood Marshall argued the cause for petitioners. With him on the brief were Wiley A. Branton, Jack Greenberg and William Coleman, Jr. Richard C. Butler argued the cause for respondents. With him on the brief was A. F. House. Solicitor General Rankin, at the invitation of the Court, argued the cause for the United States, as amicus curiae, urging that the relief sought by petitioners should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer. SEPTEMBER 4, 1958. Dismissal Under Rule 60.No. 116, October Term, 1958. AMERICAN BROADCASTING-PARAMOUNT THEATRES, INC., v. UNITED STATES. Appeal from the United States District Court for the Southern District of New York. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Albert C. Bickford for appellant. Oscar H. Davis, then Acting Solicitor General, for the United States. Reported below: 165 F. Supp. 643. SEPTEMBER 11, 1958. Miscellaneous Order.No. 1, Misc. AARON ET AL. v. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. On application for vacation of the order of the United States Court of Appeals for the Eighth Circuit staying issuance of its mandate and for a stay of the order of the United States District Court for the Eastern District of Arkansas and for such other orders as petitioners may be entitled to. Motion for leave to file brief of J. W. Fulbright, as amicus curiae, denied. Motion for leave to file brief of John Bradley Minnick, as amicus curiae, denied. Motion for leave to file brief of William Burrow, as amicus curiae, denied. Certiorari Granted.No. 1. COOPER ET AL., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, ET AL. v. AARON ET AL. On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Motion for leave to file brief of Arlington County Chapter, Defenders of State Sovereignty of Individual Liberties, as amicus curiae, denied. Motion for leave to file brief of James M. Burke, as amicus curiae, denied. Motion for leave to file suit for declaratory judgment in re Little Rock and for other relief denied. Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit granted. Richard C. Butler, A. F. House and, by special leave of the Court, John H. Haley, pro hac vice, for petitioners. Thurgood Marshall, Wiley A. Branton, William Coleman, Jr., Jack Greenberg and Louis H. Pollak for respondents. Solicitor General Rankin, appearing at the invitation of the Court, adhered to his brief filed in No. 1, Misc., August Special Term, 1958, urging that the relief sought by respondents should be granted. With him on this brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer. Reported below: 257 F.2d 33. SEPTEMBER 12, 1958. Dismissal Under Rule 60.No. 38, Misc., October Term, 1958. BLOCH v. COMMISSIONER OF INTERNAL REVENUE. On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Petitioner pro se. Solicitor General Rankin for respondent. Reported below: 254 F.2d 277. SEPTEMBER 17, 1958. Dismissal Under Rule 60.No. 87, October Term, 1958. ALLEN N. SPOONER & SONS, INC., ET AL. v. PORT OF NEW YORK AUTHORITY. On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit. Dismissed per stipulation pursuant to Rule 60 of the Rules of this Court. Martin J. McHugh was on the stipulation for petitioners. With him on the petition was Thomas F. Daly. John M. Aherne was on the stipulation for respondent. Reported below: 253 F.2d 584. |
0 | Six weeks after Pamela Lane was murdered, petitioner Butler was arrested on an unrelated assault charge for which he retained counsel. While in custody, Butler was informed that he was a suspect in Lane's murder. After receiving Miranda warnings, he signed waiver of rights forms and made incriminating statements about the Lane murder during interrogation. At his capital murder trial, the court denied his motion to suppress these statements, and he was convicted and sentenced to death. After his conviction became final on direct appeal, he filed a petition for federal habeas relief, which was dismissed by the District Court. The Court of Appeals affirmed, rejecting his argument that Edwards v. Arizona, , requires the police, during continuous custody, to refrain from all further questioning once an accused invokes his right to counsel on any offense. Subsequently, this Court handed down Arizona v. Roberson, , which held that the Fifth Amendment bars police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. The Court of Appeals denied Butler's request for rehearing. It reasoned that he was not entitled to the retroactive benefit of Roberson. According to the court, the Edwards-Roberson limitations on police interrogation are only tangentially related to the truth-finding function. It viewed those limitations as part of the prophylactic protection of the Fifth Amendment right to counsel created to be "guidelines" for the law enforcement profession and held that Butler's interrogation, while contrary to present "guidelines," had been conducted in strict accordance with established law at the time.Held: 1. Roberson announced a "new rule," since its result was not dictated by a precedent existing at the time the defendant's conviction became final, and is therefore inapplicable to cases on collateral review under Teague v. Lane, , and Penry v. Lynaugh. . The fact that a majority of this Court said that Roberson's case was directly controlled by Edwards is not conclusive for purposes of deciding whether Roberson established a new rule under Teague. Courts frequently view their decisions as "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts. It would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to Roberson's facts, since - as evidenced by the significant difference of opinion on the part of several lower courts that had considered the question previously - Roberson's outcome was susceptible to debate among reasonable minds. Pp. 412-415. 2. Roberson's rule does not come within either of the exceptions under which a new rule is available on collateral review. The first exception - for a rule that places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe - is clearly inapplicable. The proscribed conduct in the instant case is capital murder, the prosecution of which is not prohibited by the Roberson rule, and Roberson did not address any categorical guarantees accorded by the Constitution, see Penry, supra, at 329. Nor did Roberson establish any principle that would come within the second exception. The scope of that exception - for a rule that requires the observance of those procedures that are implicit in the concept of ordered liberty - is limited to those new procedures without which the likelihood of an accurate conviction is seriously diminished. However, a violation of Roberson's added restrictions on police investigatory procedures may instead increase the likelihood of obtaining an accurate determination. Pp. 415-416. 846 F.2d 255, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in Parts I, II, and III of which BLACKMUN and STEVENS, JJ., joined, post, p. 417.John H. Blume, by appointment of the Court, , argued the cause for petitioner. With him on the briefs were David I. Bruck and Dale T. Cobb, Jr.Donald J. Zelenka, Chief Deputy Attorney General of South Carolina, argued the cause for respondents. With him on the brief was T. Travis Medlock, Attorney General, pro se.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner Horace Butler was convicted and sentenced to death for the murder of Pamela Lane. After his conviction became final on direct appeal, Butler collaterally attacked his conviction by way of a petition for federal habeas corpus. Butler relied on our decision in Arizona v. Roberson, , decided after his conviction became final on direct appeal. We have held, however, that a new decision generally is not applicable in cases on collateral review unless the decision was dictated by precedent existing at the time the petitioner's conviction became final. Penry v. Lynaugh, ; Teague v. Lane, . We hold that our ruling in Roberson was not so dictated and that Butler's claim is not within either of two narrow exceptions to the general rule.Pamela Lane, a clerk at a convenience store near Charleston, South Carolina, was last seen alive when she left work riding a moped late in the evening of July 17, 1980. The next day several fishermen discovered Lane's body near a bridge, and the following day a local minister found Lane's moped submerged in a pond behind his church.Petitioner Butler was arrested six weeks later on an unrelated assault and battery charge and placed in the Charleston County Jail. After invoking his Fifth Amendment right to counsel, Butler retained counsel who appeared with him at a bond hearing on August 31, 1980. He was unable to make bond, however, and was returned to the county jail. Butler's attorney would later contend in state collateral relief proceedings that after the bond hearing, he had told the police officers not to question Butler further. The officers testified that they remembered no such instruction.Early in the morning of September 1, 1980, Butler was taken from the jail to the Charleston County Police station. He was then informed for the first time that he was a suspect in Lane's murder. After receiving Miranda warnings, see Miranda v. Arizona, , Butler indicated that he understood his rights and signed two "waiver of rights" forms. The police then interrogated Butler about the murder. Butler did not request his attorney's presence at any time during the interrogation.Butler offered two explanations for Lane's death. First, he claimed that a friend, one White, killed Lane and then sought Butler's help in disposing of the moped. When his interrogators evidenced skepticism over this statement, Butler tried again. He said that he had come upon Lane in his car and had motioned her over to the side of the road. She then voluntarily accompanied him in a drive to a nearby wooded area where the two engaged in consensual sex. Afterwards Lane threatened to accuse Butler of rape when she realized she would be late getting home. Butler maintained that he panicked, shot Lane with a handgun, and dumped her body off a bridge. In this version of the story, Butler asserted that White helped him dispose of the moped. Butler later took the police to the locations of the various events culminating in Lane's death.The State indicted Butler and brought him to trial on a charge of first-degree murder. The trial court denied Butler's motion to suppress the statements given to police, and the statements were introduced into evidence. The jury found Butler guilty and, in a separate proceeding, sentenced him to death concluding that he committed the murder during the commission of a rape. The Supreme Court of South Carolina upheld Butler's conviction on direct appeal, State v. Butler, 277 S. C. 452, 290 S. E. 2d 1, and we denied certiorari. Butler v. South Carolina, . Subsequently, Butler unsuccessfully petitioned for collateral relief in the State's courts, see Butler v. State, 286 S. C. 441, 334 S. E. 2d 813 (1985), and we again denied certiorari. Butler v. South Carolina, .In May 1986, Butler filed this petition for federal habeas relief pursuant to 28 U.S.C. 2254. As characterized by the District Court, one question raised in the petition was "whether police had the right to initiate questioning about the murder knowing petitioner had retained an attorney for the assault charge." App. 119. The District Court dismissed the petition on respondents' motion for summary judgment.On appeal to the United States Court of Appeals for the Fourth Circuit, see Butler v. Aiken, 846 F.2d 255 (1988), Butler argued that Edwards v. Arizona, , requires the police, during continuous custody, to refrain from all further questioning once an accused invokes his right to counsel on any offense. In support of his argument, Butler relied principally on United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (CA7 1987). The Court of Appeals rejected Butler's Espinoza-based contention, finding the Seventh Circuit's ruling an unpersuasive and "dramatic" extension of Edwards. Butler, 846 F.2d, at 258.The court concluded that Butler's statements were preceded by appropriate warnings and a voluntary waiver of Fifth Amendment protections. The statements, therefore, were not obtained in violation of his constitutional rights or Edwards' prophylactic rule. According to the court, a properly initiated interrogation on an entirely different charge does not intrude into an accused's previously invoked rights but instead offers the accused an opportunity to weigh his rights intelligently in light of changed circumstances. When, as occurred in this case, the accused then freely waives any constitutional right to counsel and provides voluntary statements of an incriminating nature, there is no justification for undermining the search for the truth by suppressing those statements. Butler, 846 F.2d, at 259. The Court of Appeals affirmed the dismissal of Butler's petition, and approximately one month later, denied Butler's request for rehearing and suggestion for rehearing en banc.On the same day the court denied Butler's rehearing petitions, we handed down our decision in Roberson. We held in Roberson that the Fifth Amendment bars police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. 486 U.S., at 682. On Butler's motion for reconsideration, the original Fourth Circuit panel considered Butler's new contention that Roberson requires suppression of his statements taken in the separate investigation of Lane's murder. Although the panel conceded that the substance of its prior conclusion "was cast into immediate and serious doubt" by our subsequent decision in Roberson, Butler v. Aiken, 864 F.2d 24, 25 (1988), it nevertheless determined that Butler was not entitled to the retroactive benefit of Roberson. According to the panel, the Edwards-Roberson limitations on police interrogation are only tangentially related to the truth-finding function. 864 F.2d, at 25. They are viewed most accurately as part of the prophylactic protection of the Fifth Amendment right to counsel created to be "guidelines" for the law enforcement profession. Ibid. (citing Roberson, supra, at 680-682). The interrogation of Butler, while unquestionably contrary to present "guidelines," was conducted in strict accordance with established law at the time. The panel, therefore, denied Butler's petition for rehearing. A majority of the Circuit Judges denied, over a dissent, Butler's petition for a rehearing en banc. We granted certiorari, , and now affirm.Last Term in Penry v. Lynaugh, , we held that in both capital and noncapital cases, "new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions." Id., at 313 (citing Teague v. Lane, 489 U.S., at 311-313; see infra, at 415-416 (discussing the exceptions and their inapplicability to the instant case). Referring to Teague, we reiterated that, in general, a case announces a "new rule" when it breaks new ground or imposes a new obligation on the States or the Federal Government. Penry, 492 U.S., at 314. Put differently, and, indeed, more meaningfully for the majority of cases, a decision announces a new rule "`if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" Ibid. (quoting Teague, supra, at 301) (emphasis in original).A new decision that explicitly overrules an earlier holding obviously "breaks new ground" or "imposes a new obligation." In the vast majority of cases, however, where the new decision is reached by an extension of the reasoning of previous cases, the inquiry will be more difficult. We said in Teague:"`The relevant frame of reference ... is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available.' Mackey[v. United States, (Harlan, J., concurring in judgments in part and dissenting in part)]... . `The interest in leaving concluded litigation in a state of repose ... may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.' ... Given the `broad scope of constitutional issues cognizable on habeas,' ... it is `sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation.' ... `[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, ... the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.'" Teague, supra, at 306 (plurality opinion) (emphasis added; some brackets in original; some internal citations omitted). Teague further observed:"[I]n many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of [state] criminal prosecutions ... for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. Furthermore, as we recognized in Engle v. Isaac,[, n. 33 (1982),] `[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands.' ... See also Brown v. Allen, 344 U.S.443., 534 [(1953)] (Jackson, J., concurring in result) (state courts cannot `anticipate, and so comply with, this Court's due process requirements or ascertain any standards to which this Court will adhere in prescribing them')." Teague, supra, at 310 (plurality opinion) (emphasis in original; some internal citations omitted). The "new rule" principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions. Cf. United States v. Leon, (assuming the exclusionary rule "effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity").Butler contends that Roberson did not establish a new rule and is, therefore, available to support his habeas petition. Butler argues that Roberson was merely an application of Edwards to a slightly different set of facts. Brief for Petitioner 9; Reply Brief for Petitioner 18. In support of his position, Butler points out that the majority had said that Roberson's case was directly controlled by Edwards. Brief for Petitioner 10. At oral argument Butler's counsel also pointed out that the Roberson opinion had rejected Arizona's request to create an "exception" to Edwards for interrogations concerning separate investigations. Tr. of Oral Arg. 4. According to counsel, the opinion in Roberson showed that the Court believed Roberson's case to be within the "logical compass" of Edwards. Tr. of Oral Arg. passim.But the fact that a court says that its decision is within the "logical compass" of an earlier decision, or indeed that it is "controlled" by a prior decision, is not conclusive for purposes of deciding whether the current decision is a "new rule" under Teague. Courts frequently view their decisions as being "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts. In Roberson, for instance, the Court found Edwards controlling but acknowledged a significant difference of opinion on the part of several lower courts that had considered the question previously. 486 U.S., at 679, n. 3. That the outcome in Roberson was susceptible to debate among reasonable minds is evidenced further by the differing positions taken by the judges of the Courts of Appeals for the Fourth and Seventh Circuits noted previously. It would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to the facts of Roberson. We hold, therefore, that Roberson announced a "new rule."The question remains whether the new rule in Roberson nevertheless comes within one of the two recognized exceptions under which a new rule is available on collateral review. Under the first exception, "a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 489 U.S., at 307 (plurality opinion) (quoting Mackey, (Harlan, J., concurring in judgments in part and dissenting in part)). This exception is clearly inapplicable. The proscribed conduct in the instant case is capital murder, the prosecution of which is, to put it mildly, not prohibited by the rule in Roberson. Nor did Roberson address any "categorical guarantees accorded by the Constitution" such as a prohibition on the imposition of a particular punishment on a certain class of offenders. See Penry, 492 U.S., at 329. Under the second exception, a new rule may be applied on collateral review "if it requires the observance of `those procedures that ... are "implicit in the concept of ordered liberty."'" Teague, supra, at 311 (plurality opinion) (quoting Mackey, supra, at 693 (Harlan, J., concurring in judgments in part and dissenting in part) (in turn quoting Palko v. Connecticut, (Cardozo, J.))). Teague, it should be noted, however, discerned a latent danger in relying solely on this famous language from Palko:"Were we to employ the Palko test without more, we would be doing little more than importing into a very different context the terms of the debate over incorporation... . Reviving the Palko test now, in this area of law, would be unnecessarily anachronistic... [W]e believe that Justice Harlan's concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished. "Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge." Teague, supra, at 312-313 (plurality opinion). Because a violation of Roberson's added restrictions on police investigatory procedures would not seriously diminish the likelihood of obtaining an accurate determination - indeed, it may increase that likelihood - we conclude that Roberson did not establish any principle that would come within the second exception.The judgment of the Court of Appeals is therefore Affirmed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join as to Parts I, II, and III, dissenting.Last Term in Teague v. Lane, , this Court manifested its growing hostility toward Congress' decision to authorize federal collateral review of state criminal convictions,1 curtailing the writ of habeas corpus by dramatically restructuring retroactivity doctrine. The plurality declared that a federal court entertaining a state prisoner's habeas petition generally may not reach the merits of the legal claim unless the court determines, as a threshold matter, that a favorable ruling on the claim would flow from the application of legal standards "`prevailing at the time [the petitioner's] conviction became final.'" Id., at 306 (quoting Mackey v. United States, (Harlan, J., concurring in judgment in part and dissenting in part)). Thus, with two narrow exceptions, Teague, supra, at 307, 311-313, "new" rules of law provide no basis for habeas relief. The plurality stated that a ruling qualifies as "new" "if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S., at 301 (emphasis in original).Today, under the guise of fine-tuning the definition of "new rule," the Court strips state prisoners of virtually any meaningful federal review of the constitutionality of their incarceration. A legal ruling sought by a federal habeas petitioner is now deemed "new" as long as the correctness of the rule, based on precedent existing when the petitioner's conviction became final, is "susceptible to debate among reasonable minds." Ante, at 415. Put another way, a state prisoner can secure habeas relief only by showing that the state court's rejection of the constitutional challenge was so clearly invalid under then-prevailing legal standards that the decision could not be defended by any reasonable jurist. With this requirement, the Court has finally succeeded in its thinly veiled crusade to eviscerate Congress' habeas corpus regime.IBecause constitutional interpretation is an evolutionary process, the analytical distinction between legal rules "prevailing" at the time of conviction and "new" legal rules is far from sharp. This distinction must be drawn carefully, with reference to the nature of adjudication in general and the purposes served by habeas corpus in particular. But while the Court purports to draw guidance from the retroactivity analysis advanced by Justice Harlan, see ante, at 413 (quoting Teague, supra), the Court simply ignores Justice Harlan's admonition that "[t]he theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is ... more complex than the Court has seemingly recognized." Desist v. United States, (Harlan, J., dissenting). Instead, the Court embraces a virtually all-encompassing definition of "new rule" without pausing to articulate any justification therefor. Result, not reason, propels the Court today.AThe Court's preclusion of federal habeas review for all but the most indefensible state-court rejections of constitutional challenges is made manifest by the Court's conclusion that our recent holding in Arizona v. Roberson, , qualifies as establishing a "new rule." Long before Roberson, this Court recognized the presumptively coercive nature of custodial interrogations and held that an interrogation must cease if and when a suspect requests an attorney. "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests upon the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda v. Arizona, . In Edwards v. Arizona, , we applied this rule to a situation where detectives renewed an interrogation of the accused about a series of offenses, after he had requested counsel during an earlier interrogation concerning the same offenses. We "reconfirm[ed] these views [expressed in Miranda, supra] and, to lend them substance, emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U.S., at 485. We carefully considered the circumstances under which a suspect, who has requested counsel during a custodial interrogation, may be deemed to have validly waived his right to counsel prior to the resumption of interrogation. We concluded that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights." Id., at 484. As a result, we established a bright-line rule: a suspect who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id., at 484-485.In Roberson, supra, the State of Arizona "ask[ed] us to craft an exception to that rule." 486 U.S., at 677. Noting that Edwards involved two interrogations concerning the same offenses, the State of Arizona sought an exception "for cases in which the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation." 486 U.S., at 677. We declined, finding "unavailing" the State's "attempts at distinguishing the factual setting here from that in Edwards." Id., at 685. We explained that the rule articulated in Edwards reflected our concern that "if a suspect believes that he is not capable of undergoing [custodial] questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the `inherently compelling pressures' and not the purely voluntary choice of the suspect." 486 U.S., at 681. That Roberson's second interrogation concerned a different subject than his first in no way assuaged our concern that Roberson's initial request for counsel reflected an inability to deal with police questioning without legal advice. Therefore Edwards' application did not turn on the subject matter of the two interrogations. 486 U.S., at 682; see id., at 684 ("[T]here is no reason to assume that a suspect's state of mind is in any way investigation-specific"). We likewise "attach[ed] no significance to the fact that the officer who conducted the second interrogation did not know that [Roberson] had made a request for counsel," because "Edwards focuses on the state of mind of the suspect and not of the police." Id., at 687.BIt is clear from our opinion in Roberson that we would have reached the identical conclusion had that case reached us in 1983 when Butler's conviction became final. In Roberson, we simply applied the legal principle established in Miranda and reconfirmed in Edwards to a set of facts that was not dissimilar in any salient way. We did not articulate any new principles of Fifth Amendment jurisprudence that were not already established in 1983.Yet today the Court classifies Roberson as a "new rule" notwithstanding the above, characterizing the "outcome in Roberson [as] susceptible to debate among reasonable minds." Ante, at 415. For this conclusion, the majority appears to rely solely on the fact that the court below and several state courts had incorrectly predicted the outcome in Roberson by holding that the Edwards rule ought not apply where the second interrogation involves different subject matter. Ibid. But this reliance is perplexing. The majority might mean to suggest that a particular result is reasonable so long as a certain number of courts reach the same result. But this would be an odd criterion for "reasonableness." Its application would be ad hoc, both because there appears to be no principled basis for choosing any particular number of courts whose agreement is required before the result is deemed "reasonable," and because the criterion ultimately rests on a boot-strap to the extent that the later courts reaching the result simply rely on the earlier courts' having done the same.On the other hand, the majority might mean that the lower court decisions foreshadowing the dissent's position in Roberson, though ultimately erroneous, were nevertheless "reasonable" according to some objective criterion of adjudication.2 But the Court does not purport to identify any such criterion or explain its application in this case. Instead, the Court announces in peremptory fashion that "[i]t would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to the facts of Roberson." Ante, at 415. This characterization is mystifying, given our explanation in Roberson that the result was clearly dictated by Edwards. See supra, at 419-420.The only conclusion discernible from the majority's discussion is that the majority would label "new" any rule of law favoring a state prisoner that can be distinguished from prior precedent on any conceivable basis, legal or factual.3 The converse of this conclusion is that, in the majority's view, adjudication according to "prevailing" law must consist solely of applying binding precedents to factual disputes that cannot be distinguished from prior cases in any imaginable way. Because after Teague v. Lane, , a federal court may entertain a habeas petition on the merits only if the petitioner seeks application of "prevailing" law as so narrowly defined, the majority today limits federal courts' habeas corpus function to reviewing state courts' legal analysis under the equivalent of a "clearly erroneous" standard of review. A federal court may no longer consider the merits of the petitioner's claim based on its best interpretation and application of the law prevailing at the time her conviction became final; rather, it must defer to the state court's decision rejecting the claim unless that decision is patently unreasonable.4 IIThe Court's exceedingly broad definition of "new rule" - and conversely its narrow definition of "prevailing" law - betrays a vision of adjudication fundamentally at odds with any this Court has previously recognized. According to Justice Harlan, whose retroactivity jurisprudence undergirds Teague and its progeny: "One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation." Desist, 394 U.S., at 263 (Harlan, J., dissenting). As every first-year law student learns, adjudication according to prevailing law means far more than obeying precedent by perfunctorily applying holdings in previous cases to virtually identical fact patterns. Rather, such adjudication requires a judge to evaluate both the content of previously enunciated legal rules and the breadth of their application. A judge must thereby discern whether the principles applied to specific fact patterns in prior cases fairly extend to govern analogous factual patterns. In Justice Harlan's view, adjudication according to prevailing law demands that a court exhibit "conceptual faithfulness" to the principles underlying prior precedents, not just "decisional obedience" to precise holdings based upon their unique factual patterns. Id., at 266, n. 5 (employing Justice Fortas' terminology). The inability of lower courts to predict significant reformulations by this Court of the principles underlying prior precedents does not excuse them from the obligation to draw reasoned conclusions from principles that are well established at the time of their decisions.The majority suggests obliquely that adoption of a "`new rule' principle [that] validates reasonable, good-faith interpretations of existing precedents," ante, at 414 - which in turn means that adjudication according to "prevailing" law requires only strict "decisional obedience" to existing precedents - would still serve the "deterrence function" animating federal habeas review. Ibid. (emphasis in original). But this claim begs a central question: deterrence of what? Under the definition of "prevailing" law embraced today, federal courts may not entertain habeas petitions challenging state-court rejections of constitutional claims unless those state decisions are clearly erroneous. So at best, the threat of habeas review will deter state courts only from completely indefensible rejections of federal claims. State courts essentially are told today that, save for outright "illogical" defiance of a binding precedent precisely on point, their interpretations of federal constitutional guarantees - no matter how cramped and unfaithful to the principles underlying existing precedent - will no longer be subject to oversight through the federal habeas system. State prosecutors surely will offer every conceivable basis in each case for distinguishing our prior precedents, and state courts will be free to "`disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided [by the Supreme Court] approach.'" United States v. Johnson, (quoting Desist, supra, at 277 (Fortas, J., dissenting)); cf. Johnson, supra, at 561 (rejecting contention that "all rulings resolving unsettled Fourth Amendment questions should be nonretroactive [to cases pending upon direct review because otherwise,] in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior").5 This Court has never endorsed such a cramped view of the deterrent purpose of habeas review: we have always expected the threat of habeas to encourage state courts to adjudicate federal claims "correctly," not just "reasonably." See, e. g., Teague, supra, at 306-307 (deterrence rationale requires "[r]eview on habeas to determine that the conviction rests upon correct application of the law in effect at the time of the conviction") (emphasis added) (quoting Solem v. Stumes, (Powell, J., concurring in judgment)). And, as explained above, "correct" adjudication has always been thought to require courts to exhibit "conceptual faithfulness" to the principles underlying our precedents and thereby to anticipate reasonably foreseeable applications of those principles. See, e. g., Johnson, supra, at 549 ("When a decision of this Court merely has applied settled precedents to new and different factual situations, no real question [of retroactivity] has arisen ... . In such cases, it has been a foregone conclusion that the rule of the later case applies in earlier cases, because the later decision has not in fact altered that rule in any material way").6 Indeed, even Justice Harlan, the chief proponent of the view that federal habeas is designed merely to deter erroneous state-court rejections of constitutional claims, believed that federal review is appropriate when a state court fails to presage reasonably foreseeable applications of established constitutional principles beyond the precise factual settings of prior precedent. Justice Harlan would have held state courts responsible for "appl[ying] a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." Desist, 394 U.S., at 263. In the context of this case, Justice Harlan would not have held the rule in Roberson to be "new" today unless he could "say with ... assurance that this Court would have ruled differently" (i.e., in the State's favor) at the time Butler's conviction became final. 394 U.S., at 264 (emphasis added). In contrast, the majority embraces the opposite presumption; it holds Roberson's rule to be "new" because it cannot say with assurance that the Court could not have ruled in favor of the State at that time.7 Thus the Court's holding today is unfaithful even to the purported progenitor of its position. Most significantly, the limited scope of the deterrence promised by the Court's holding today defeats Congress' purpose in establishing the scheme of federal habeas review of state criminal proceedings. Congress established such review because it perceived a potential "inadequacy of state procedures to raise and preserve federal claims [and was] concern[ed] that state judges may be unsympathetic to federally created rights." Kaufman v. United States, .8 Congress intended the "[t]hreat of habeas" both to "serv[e] as a necessary additional incentive for [state] trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards," ante, at 413 (citations omitted), and to provide petitioners a remedy for unlawful state deprivations of their liberty interests through a fresh and full review of their claims by an Article III court. As we recognized in Fay v. Noia, , "the manifest federal policy [underlying 2254(a) is] that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review" (emphasis added). See also, e. g., Kaufman, supra, at 228 ("Congress has determined that the full protection of ... constitutional rights requires the availability of a mechanism for collateral attack. The right then is not merely to a federal forum but to full and fair consideration of constitutional claims"). It has long been established, therefore, that federal habeas proceedings ought not accord any deference to the state court's constitutional ruling under collateral attack.9 Instead, the federal court must determine for itself the proper scope of constitutional principles and their application to the particular factual circumstances. As explained by Justice Frankfurter, "[t]he congressional requirement is [that the] State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right." Brown v. Allen, . Congress thus entitled petitioners to de novo review of their federal claims in federal habeas proceedings.10 But the Court's decision today denies federal courts the role on habeas review that Congress envisioned because it limits them to remedying only clearly unreasonable state-court applications of federal law, rather than all erroneous ones.Moreover, Congress' insistence that "federal courts have the `last say' with respect to questions of federal law" raised during state criminal proceedings, Kaufman, supra, at 225, cannot be satisfied by this Court's jurisdiction to review state proceedings directly. State courts are well aware that the "Supreme Court's burden and responsibility are too great to permit it to review and correct every misstep made by the lower courts in the application of accepted principles. Hence the Court generally will not grant certiorari just because the decision below may be erroneous." R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 4.17, p. 221 (6th ed. 1986).11 We have long recognized that Congress' decision in 1867 to "exten[d] to state prisoners ... the federal habeas corpus remedy bespoke congressional unwillingness to trust direct appellate review of state court decisions by the Supreme Court as the lone avenue of vindication of the new constitutional strictures" of the Fourteenth Amendment. Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 Utah L. Rev. 423, 426 (1961). But today's decision, essentially foreclosing habeas review as an alternative "avenue of vindication," overrides Congress' will, and leaves federal judicial protection of fundamental constitutional rights during the state criminal process solely to this Court upon direct review. I share Congress' lack of confidence in such a regime. After today, despite constitutional defects in the state processes leading to their conviction or sentencing, state prisoners will languish in jail - and others like Butler will die - because state courts were reasonable, even though wrong.12 The majority apparently finds such injustice acceptable based upon an asserted "`interest in leaving concluded litigation in a state of repose.'" Ante, at 413 (quoting Teague, 489 U.S., at 306). This will not do. It is one thing to preclude federal habeas petitioners from asserting claims based on legal principles contrary to or at least significantly dissimilar from those in existence at the time their convictions became final; such a basis for habeas relief engenders the possibility of "`continually forc[ing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.'" Ante, at 413-414 (quoting Teague, supra, at 310). It is a far different thing to say that concerns for repose and resource scarcity justify today's judicial decision to protect States from the consequences of retrying or resentencing defendants whose trials and appeals did not conform to then-existing constitutional standards but are viewed as suffering from only "reasonable" defects. "This Court has never held ... that finality, standing alone, provides a sufficient reason for federal courts to compromise their protection of constitutional rights under 2254." Reed v. Ross, . Until today.IIIIt is Congress and not this Court who is "`responsible for defining the scope of the writ.'" Ante, at 413 (citations omitted).13 Yet the majority, whose Members often pride themselves on their reluctance to play an "activist" judicial role by infringing upon legislative prerogatives, does not hesitate today to dismantle Congress' extension of federal habeas to state prisoners. Hereafter, federal habeas relief will be available in only the most egregious cases, in which state courts have flouted applicable Supreme Court precedent that cannot be distinguished on any arguable basis. I must dissent from this curtailment of the writ's capacity for securing individual liberty. "For surely it is an abuse to deal too casually and too lightly with rights guaranteed by the Federal Constitution, even though they involve limitations upon State power and may be invoked by those morally unworthy. Under the guise of fashioning a procedural rule, we are not justified in wiping out the practical efficacy of a jurisdiction conferred by Congress on the District Courts." Brown, 344 U.S., at 498-499 (opinion of Frankfurter, J.).IVEven if I did not believe that petitioner is entitled in this habeas proceeding to claim the protections of the Fifth Amendment as defined by this Court in Roberson, I would vacate his death sentence. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment. Gregg v. Georgia, . |
7 | In order for a State to tax the multistate income of a nondomiciliary corporation, there must be, inter alia, a minimal connection between the interstate activities and the taxing State, Mobil Oil Corp. v. Commissioner of Taxes of Vt., , and a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business, id., at 437. Rather than isolating the intrastate income-producing activities from the rest of the business, a State may tax a corporation on an apportioned sum of the corporation's multistate business if the business is unitary. E.g., ASARCO Inc. v. Idaho Tax Comm'n, . However, a State may not tax the nondomiciliary corporation's income if it is derived from unrelated business activity that constitutes a discrete business enterprise. Exxon Corp. v. Deptartment of Revenue of Wis., . Petitioner is the successor-in-interest to the Bendix Corporation, a Delaware corporation. In the late 1970's Bendix acquired 20.6% of the stock of ASARCO Inc., a New Jersey corporation, and resold it to ASARCO in 1981, generating a $211.5 million gain. After respondent New Jersey tax official assessed Bendix for taxes on an apportioned amount which included in the base the gain realized from the stock disposition, Bendix sued for a refund in State Tax Court. The parties stipulated that, during the period that Bendix held its investment, it and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other, and that, although Bendix held two seats on ASARCO's board, it exerted no control over ASARCO. Based on this record, the court held that the assessment was proper, and the Appellate Division and the State Supreme Court both affirmed. The latter court stated that the tests for determining a unitary business are not controlled by the relationship between the taxpayer recipient and the affiliate generator of the income that is the subject of the tax, and concluded that Bendix essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity. Held: 1. The unitary business principle remains an appropriate device for ascertaining whether a State has transgressed constitutional limitations in taxing a nondomiciliary corporation. Pp. 777-788. (a) The principle that a State may not tax value earned outside its borders rests on both Due Process and Commerce Clause requirements. The unitary business rule is a recognition of the States' wide authority to devise formulae for an accurate assessment of a corporation's intrastate value or income and the necessary limit on the States' authority to tax value or income that cannot fairly be attributed to the taxpayer's activities within a State. The indicia of a unitary business are functional integration, centralization of management, and economies of scale. F.W. Woolworth Co. v. Taxation and Revenue Dept. of N.M., ; Container Corp. of America v. Franchise Tax Bd., . Pp. 777-783. (b) New Jersey and several amici have not persuaded this Court to depart from the doctrine of stare decisis by overruling the cases that announce and follow the unitary business standard. New Jersey's sweeping theory - that all income of a corporation doing any business in a State is, by virtue of common ownership, part of the corporation's unitary business and apportionable - cannot be reconciled with the concept that the Constitution places limits on a State's power to tax value earned outside its borders, and is far removed from the latitude that is granted to States to fashion formulae for apportionment. This Court's precedents are workable in practice. Any divergent results in applying the unitary business principle exist because the variations in the unitary theme are logically consistent with the underlying principles motivating the approach and because the constitutional test is quite factsensitive. In contrast, New Jersey's proposal would disrupt settled expectations in an area of the law in which the demands of the national economy require stability. Pp. 783-786. (c) The argument by other amici that the constitutional test for determining apportionment should turn on whether the income arises from transactions and activity in the regular course of the taxpayer's trade or business, with such income including income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations, does not benefit the State here. While the payor and payee need not be engaged in the same unitary business, the capital transaction must serve an operational, rather than an investment, function. Container Corp., supra, at 180, n. 19. The existence of a unitary relation between the payor and the payee is but one justification for apportionment. Pp. 786-788. 2. The stipulated factual record in this case makes clear that, under this Court's precedents, New Jersey was not permitted to include the gain realized on the sale of Bendix's ASARCO stock in its apportionable tax base. There is no serious contention that any of the three Woolworth factors were present. Functional integration and economies of scale could not exist because, as the parties stipulated, the companies were unrelated business enterprises. Moreover, there was no centralization of management, since Bendix did not own enough ASARCO stock to have the potential to operate ASARCO as an integrated division of a single unitary business, and since even potential control is insufficient. Woolworth, supra, 458 U.S., at 362. Contrary to the State Supreme Court's view, the fact that an intangible asset was acquired pursuant to a long-term corporate strategy of acquisitions and investment does not turn an otherwise passive investment into an integral operational one. See Container Corp., 463 U.S., at 180, n. 19. The fact that a transaction was undertaken for a business purpose does not change its character. Little is revealed about whether ASARCO was run as part of Bendix's unitary business by the fact that Bendix may have intended to use the proceeds of its gain to acquire another company. Nor can it be maintained that Bendix's shares amounted to a short-term investment of working capital analogous to a bank account or a certificate of deposit. See ibid. Pp. 17-19. 125 N.J. 20, 692 A.2d 536 (1991), reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which WHITE, STEVENS, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and BLACKMUN and THOMAS, JJ., joined, post, p. 790.Walter Hellerstein reargued the cause for petitioner. With him on the briefs were Prentiss Willson, Jr., Harry R. Jacobs, Robyn H. Pekala, Andrew L. Frey, Kenneth S. Geller, Charles Rothfeld, and Bennett Boskey. Andrew L. Frey argued the cause for petitioner on the original argument. With him on the briefs were Messrs. Willson, Hellerstein, and Jacobs, Evan M. Tager, and Mr. Boskey. Mary R. Hamill, Deputy Attorney General of New Jersey, reargued the cause for respondent. With her on the briefs were Robert J. Del Tufo, Attorney General, Joseph L. Yannotti, Assistant Attorney General, and Sarah T. Darrow, Deputy Attorney General.* [Footnote *] Briefs of amici curiae urging reversal were filed for Coca-Cola Co. et al. by Mark L. Evans, James P. Tuite, Alan I. Horowitz, and Anthony F. Shelley; for the Committee on State Taxation by Amy Eisenstadt; for General Motors Corp. et al. by Jerome B. Libin and Kathryn L. Moore; for the Tax Executives Institute, Inc., by Timothy J. McCormally; and for Williams Cos., Inc., by Rose Mary Ham and Henry G. Will.Briefs of amici curiae urging affirmance were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Timothy G. Laddish, Assistant Attorney General, and Benjamin F. Miller, and by the Attorneys General for their respective States as follows: Charles E. Cole of Alaska, Robert A. Butterworth of Florida, Larry EchoHawk of Idaho, Robert T. Stephan of Kansas, Michael E. Carpenter of Maine, Marc Racicot of Montana, John P. Arnold of New Hampshire, Nicholas Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, R. Paul Van Dam of Utah; Jeffrey L. Amestoy of Vermont, and James E. Doyle of Wisconsin; for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Thomas A. Barnico, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, J. Joseph Curran, Attorney General of Maryland, and Mary Sue Terry, Attorney General of Virginia; for the City of New York by O. Peter Sherwood and Edward F. X. Hart; and for the Multistate Tax Commission by Alan H. Friedman, Paull Mines, and Scott D. Smith.Briefs of amici curiae were filed for the State of Alabama et al. by Mary Sue Terry, Attorney General of Virginia, H. Lane Kneedler, Chief Deputy Attorney General, Gail Starling Marshall, Deputy Attorney General, Gregory E. Lucyk and N. Pendleton Rogers, Senior Assistant Attorneys General, and Barbara H. Vann and Martha B. Brissette, Assistant Attorneys General, Peter W. Low, Jimmy Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale Norton, Attorney General of Colorado, John Payton, Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price III, Attorney General of Hawaii, Linley E. Pearson, Attorney General of Indiana, Chris Gorman, Attorney General of Kentucky, Richard Ieyoub, Attorney General of Louisiana, Frank J. Kelley, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, Mark Barnett, Attorney General of South Dakota, Dan Morales, Attorney General of Texas, Paul Van Dam, Attorney General of Utah, Rosalie S. Ballentine, Attorney General of the Virgin Islands, Ken Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, James E. Doyle, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; for the State of Connecticut et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Gerald Langbaum and Andrew H. Baida, Assistant Attorneys General, Richard Blumenthal, Attorney General of Connecticut , Bonnie J. Campbell, Attorney General of Iowa, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Ernest D. Preate, Jr., Attorney General of Pennsylvania, and James E. O'Neil, Attorney General of Rhode Island; for American General Corp. by Roy E. Crawford, Russell D. Uzes, and Karen A. Bain; for American Home Products Corp. et al. by William L. Goldman and Anne G. Batter; for Chevron Corp. by Toni Rembe, Jeffrey M. Vesely, and C. Douglas Floyd; and for the Financial Institutions State Tax Coalition by Philip M. Plant and Haskell Edelstein. JUSTICE KENNEDY delivered the opinion of the Court.Among the limitations the Constitution sets on the power of a single State to tax the multistate income of a nondomiciliary corporation are these: There must be "a `minimal connection' between the interstate activities and the taxing State," Mobil Oil Corp. v. Commissioner of Taxes of Vt., (quoting Moorman Mfg. Co. v. Bair, ), and there must be a rational relation between the income attributed to the taxing State and the intrastate value of the corporate business. 445 U.S., at 437. Under our precedents, a State need not attempt to isolate the intrastate income-producing activities from the rest of the business; it may tax an apportioned sum of the corporation's multistate business if the business is unitary. E.g., ASARCO Inc. v. Idaho Tax Comm'n, (1982). A State may not tax a nondomiciliary corporation's income, however, if it is "derive[d] from `unrelated business activity' which constitutes a `discrete business enterprise.'" Exxon Corp. v. Wisconsin Dept. of Revenue, (quoting Mobil Oil, supra, at 442, 439). This case presents the questions: (1) whether the unitary business principle remains an appropriate device for ascertaining whether a State has transgressed its constitutional limitations; and if so, (2) whether, under the unitary business principle, the State of New Jersey has the constitutional power to include in petitioner's apportionable tax base certain income that, petitioner maintains, was not generated in the course of its unitary business.IPetitioner Allied-Signal, Inc., is the successor-in-interest to the Bendix Corporation (Bendix). The present dispute concerns Bendix's corporate business tax liability to the State of New Jersey for the fiscal year ending September 30, 1981. Although three items of income were contested earlier, the controversy in this Court involves only one item: the gain of $211.5 million realized by Bendix on the sale of its 20.6% stock interest in ASARCO Inc. (ASARCO). The case was submitted below on stipulated facts, and we begin with a summary.During the times in question, Bendix was a Delaware corporation with its commercial domicile and corporate headquarters in Michigan. Bendix conducted business in all 50 States and 22 foreign countries. App. 154. Having started business in 1929 as a manufacturer of aviation and automotive parts, from 1970 through 1981, Bendix was organized in four major operating groups: automotive; aerospace/electronics; industrial/energy; and forest products. Id., at 154-155. Each operating group was under separate management, but the chief executive of each group reported to the chairman and chief executive officer of Bendix. Id., at 155. In this period, Bendix's primary operations in New Jersey were the development and manufacture of aerospace products. Id., at 161.ASARCO is a New Jersey corporation with its principal offices in New York. It is one of the world's leading producers of nonferrous metals, treating ore taken from its own mines and ore it obtains from others. Id., at 163-164. From December, 1977, through November, 1978, Bendix acquired 20.6% of ASARCO's stock by purchases on the open market. Id., at 165. In the first half of 1981, Bendix sold its stock back to ASARCO, generating a gain of $211.5 million. Id., at 172. The issue before us is whether New Jersey can tax an apportionable part of this income. Our determination of the question whether the business can be called "unitary," see infra., at 788-789, is all but controlled by the terms of a stipulation between the taxpayer and the State. They stipulated: "During the period that Bendix held its investment in ASARCO, Bendix and ASARCO were unrelated business enterprises each of whose activities had nothing to do with the other." Id., at 169. Furthermore, "[p]rior to and after its investment in Asarco, no business or activity of Bendix (in New Jersey or otherwise), either directly or indirectly (other than the investment itself), was involved in the nonferrous metal production business or any other business or activity (in New Jersey or otherwise) in which Asarco was involved. On its part, Asarco had no business or activity (in New Jersey or otherwise) which, directly or indirectly, was involved in any of the businesses or activities (in New Jersey or otherwise) in which Bendix was involved. None of Asarco's activities, businesses or income (in New Jersey or otherwise) were related to or connected with Bendix's activities, business or income (in New Jersey or otherwise). Id., at 164-165. The stipulation gives the following examples of the independence of the businesses: "There were no common management, officers, or employees of Bendix and Asarco. There was no use by Bendix of Asarco's corporate plant, offices or facilities, and no use by Asarco of Bendix's corporate plant, offices or facilities. There was no rent or lease of any property by Bendix from Asarco, and no rent or lease of any property by Asarco from Bendix. Bendix and Asarco were each responsible for providing their own legal services, contracting services, tax services, finance services and insurance. Bendix and Asarco had separate personnel and hiring policies ... and separate pension and employee benefit plans. Bendix did not lend monies to Asarco, and Asarco did not lend monies to Bendix. There were no joint borrowings by Bendix and Asarco. Bendix did not guaranty any of Asarco's debt, and Asarco did not guaranty any of Bendix's debt. Asarco had no representative on Bendix's Board of Directors. Bendix did not pledge its Asarco stock. As far as can be determined, there were no sales of product by Asarco itself to Bendix or by Bendix to Asarco. There were certain sales of product in the ordinary course of business by Asarco subsidiaries to Bendix, but these sales were minute compared to Asarco's total sales... . These open market sales were at arms length prices, and did not come about due to the Bendix investment in Asarco. There were no transfers of employees between Bendix and Asarco." Id., at 169-171. While Bendix held its ASARCO stock, ASARCO agreed to recommend that two seats on the 14 member ASARCO Board of Directors be filled by Bendix representatives. The seats were filled by Bendix chief executive officer W. M. Agee and a Bendix outside director. Id., at 168. Nonetheless, "Bendix did not exert any control over Asarco." Ibid. After respondent assessed Bendix for taxes on an apportioned amount which included in the base the gain realized upon Bendix's disposition of its ASARCO stock, Bendix sued for a refund in New Jersey Tax Court. The case was decided based upon the stipulated record we have described, and the Tax Court held that the assessment was proper. Bendix Corp. v. Taxation Div. Director, 10 N. J. Tax 46 (1988). The Appellate Division affirmed, Bendix Corp. v. Director, Div. of Taxation, 237 N. J. Super. 328, 568 A. 2d 59 (1989), and so, in turn, did the New Jersey Supreme Court, Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 592 A. 2d 536 (1991).The New Jersey Supreme Court held it was constitutional to consider the gain realized from the sale of the ASARCO stock as earned in Bendix's unitary business, drawing from our decision in Container Corp. of America v. Franchise Tax Bd., , the principle that "the context for determining whether a unitary business exists has, as an overriding consideration, the exchange or transfer of value, which may be evidenced by functional integration, centralization of management, and economies of scale." 125 N. J., at 34, 592 A.2d, at 543-544. The New Jersey Supreme Court went on to state: "The tests for determining a unitary business are not controlled, however, by the relationship between the taxpayer recipient and the affiliate generator of the income that becomes the subject of State tax." Id., at 35, 592 A.2d, at 544. Based upon Bendix documents setting out corporate strategy, the court found that the acquisition and sale of ASARCO "went well beyond ... passive investments in business enterprises," id., at 36, 592 A.2d at 544, and Bendix "essentially had a business function of corporate acquisitions and divestitures that was an integral operational activity." Ibid. As support for its conclusion that the proceeds from the sale of the ASARCO stock were attributable to a unitary business, the New Jersey Supreme Court relied in part on the fact that Bendix intended to use those proceeds in what later proved to be an unsuccessful bid to acquire Martin Marietta, a company whose aerospace business, it was hoped, would complement Bendix's aerospace/electronics business. Id., at 36, 592 A.2d, at 545.We granted certiorari. . At the initial oral argument in this case, New Jersey advanced the proposition that all income earned by a nondomiciliary corporation could be apportioned by any State in which the corporation does business. To understand better the consequences of this theory, we requested rebriefing and reargument. Our order asked the parties to address three questions: "1. Should the Court overrule ASARCO Inc. v. Idaho State Tax Comm'n, , and F. W. Woolworth Co. v. Taxation and Revenue Dept. of New Mexico, ? "2. If ASARCO and Woolworth were overruled, should the decision apply retroactively? "3. If ASARCO and Woolworth were overruled, what constitutional principles should govern state taxation of corporations doing business in several states? . Because we give a negative answer to the first question, see infra, at 783-786, we need not address the second and third.IIThe principle that a State may not tax value earned outside its borders rests on the fundamental requirement of both the Due Process and Commerce Clauses that there be "some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax." Miller Brothers. Co. v. Maryland, . The reason the Commerce Clause includes this limit is self-evident: In a Union of 50 States, to permit each State to tax activities outside its borders would have drastic consequences for the national economy, as businesses could be subjected to severe multiple taxation. But the Due Process Clause also underlies our decisions in this area. Although our modern due process jurisprudence rejects a rigid, formalistic definition of minimum connection, we have not abandoned the requirement that, in the case of a tax on an activity, there must be a connection to the activity itself, rather than a connection only to the actor the State seeks to tax, see Quill Corp. v. North Dakota, ante, at 306-308. The constitutional question in a case such as Quill Corp. is whether the State has the authority to tax the corporation at all. The present inquiry, by contrast, focuses on the guidelines necessary to circumscribe the reach of the State's legitimate power to tax. We are guided by the basic principle that the State's power to tax an individual's or corporation's activities is justified by the "protection, opportunities and benefits" the State confers on those activities. Wisconsin v. J. C. Penney Co., .Because of the complications and uncertainties in allocating the income of multistate businesses to the several States, we permit States to tax a corporation on an apportionable share of the multistate business carried on in part in the taxing State. That is the unitary business principle. It is not a novel construct, but one that we approved within a short time after the passage of the Fourteenth Amendment's Due Process Clause. We now give a brief summary of its development.When States attempted to value railroad or telegraph companies for property tax purposes, they encountered the difficulty that what makes such a business valuable is the enterprise as a whole, rather than the track or wires that happen to be located within a State's borders. The Court held that, consistent with the Due Process Clause, a State could base its tax assessments upon "the proportionate part of the value resulting from the combination of the means by which the business was carried on, a value existing to an appreciable extent throughout the entire domain of operation." Adams Express Co. v. Ohio State Auditor, (citing Western Union Telegraph Co. v. Attorney General of Massachusetts, ); Massachusetts v. Western Union Telegraph Co., ; Maine v. Grand Trunk R. Co., ; Pittsburgh, C., C., & St.L. R. Co. v. Backus, ; Cleveland, C., C. & St.L. R. Co. v. Backus, ; Western Union Telegraph Co. v. Taggart, ; Pullman's Palace Car Co. v. Pennsylvania, .Adams Express recognized that the principles that permit a State to levy a tax on the capital stock of a railroad, telegraph, or sleeping car company by reference to its unitary business also allow proportional valuation of a unitary business in enterprises of other sorts. As the Court explained: "The physical unity existing in the former is lacking in the latter, but there is the same unity in the use of the entire property for the specific purpose, and there are the same elements of value arising from such use." 165 U.S., at 221.The unitary business principle was later permitted for state taxation of corporate income as well as property and capital. Thus, in Underwood Typewriter Co. v. Chamberlain, , we explained: "The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut and ending with sale in other States. In this it was typical of a large part of the manufacturing business conducted in the State. The legislature, in attempting to put upon this business its fair share of the burden of taxation, was faced with the impossibility of allocating specifically the profits earned by the processes conducted within its borders. It therefore adopted a method of apportionment which, for all that appears in this record, reached, and was meant to reach, only the profits earned within the State." As these cases make clear, the unitary business rule is a recognition of two imperatives: the States' wide authority to devise formulae for an accurate assessment of a corporation's intrastate value or income and the necessary limit on the States' authority to tax value or income that cannot in fairness be attributed to the taxpayer's activities within the State. It is this second component, the necessity for a limiting principle, that underlies this case.As we indicated in Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U.S., at 442: "Where the business activities of the dividend payor have nothing to do with the activities of the recipient in the taxing State, due process considerations might well preclude apportionability, because there would be no underlying unitary business." The constitutional question becomes whether the income "derive[s] from `unrelated business activity' which constitutes a `discrete business enterprise.'" Exxon Corp. v. Wisconsin Dept. of Revenue, (quoting Mobil Oil, supra, at 442, 439).Although Mobil Oil and Exxon made clear that the unitary business principle limits the States' taxing power, it was not until our decisions in ASARCO Inc. v. Idaho Tax Comm'n, , and F. W. Woolworth Co. v. Taxation and Revenue Dept. of N.M., , that we struck down a state attempt to include in the apportionable tax base income not derived from the unitary business. In those cases the States sought to tax unrelated business activity.The principal question in ASARCO concerned Idaho's attempt to include in the apportionable tax base of ASARCO certain dividends received from, among other companies, the Southern Peru Copper Corp. 458 U.S., at 309, 320. The analysis is of direct relevance for us, because we have held that, for constitutional purposes, capital gains should be treated as no different from dividends. Id., at 330. The ASARCO in the 1982 case was the same company as the ASARCO here. It was one of four of Southern Peru's shareholders, owning 51.5 of its stock. Under an agreement with the other shareholders, ASARCO was prevented from dominating Southern Peru's board of directors. ASARCO had the right to appoint 6 of Southern Peru's 13 directors, while 8 votes were required for the passage of any resolution. Southern Peru was in the business of producing unrefined copper (a nonferrous ore), some of which it sold to its shareholders. ASARCO purchased approximately 35% of Southern Peru's output, at average representative trade prices quoted in a trade publication and over which neither Southern Peru nor ASARCO had any control. Id., at 320-322. We concluded that "ASARCO's Idaho silver mining and Southern Peru's autonomous business [were] insufficiently connected to permit the two companies to be classified as a unitary business." Id., at 322.On the same day we decided ASARCO, we decided Woolworth. In that case, the taxpayer company was domiciled in New York and operated a chain of retail variety stores in the United States. In the company's apportionable state tax base, New Mexico sought to include earnings from four subsidiaries operating in foreign countries. The subsidiaries also engaged in chainstore retailing. Woolworth, supra, at 356-357. We observed that, although the parent company had the potential to operate the subsidiaries as integrated divisions of a single unitary business, that potential was not significant if the subsidiaries in fact comprise discrete business operations. Id., at 362. Following the indicia of a unitary business defined in Mobil Oil, we inquired whether any of the three objective factors were present. The factors were: (1) functional integration; (2) centralization of management; and (3) economies of scale. Woolworth, supra, at 364. We found that, "[e]xcept for the type of occasional oversight - with respect to capital structure, major debt, and dividends - that any parent gives to an investment in a subsidiary," id., at 369, none of these factors was present. The subsidiaries were found not to be part of a unitary business. Ibid.Our most recent case applying the unitary business principle was Container Corp. of America v. Franchise Tax Bd., . The taxpayer there was a vertically integrated corporation which manufactured custom-ordered paperboard packaging. Id., at 171. California sought to tax income it received from its wholly owned and mostly owned foreign subsidiaries, each of which was in the same business as the parent. Id., at 171-172. The foreign subsidiaries were given a fair degree of autonomy: They purchased only 1% of their materials from the parent, and personnel transfers from the parent to the subsidiaries were rare. Id., at 172. We recognized, however: "[I]n certain respects, the relationship between appellant and its subsidiaries was decidedly close. For example, approximately half of the subsidiaries' long-term debt was either held directly, or guaranteed, by appellant. Appellant also provided advice and consultation regarding manufacturing techniques, engineering, design, architecture, insurance, and cost accounting to a number of its subsidiaries, either by entering into technical service agreements with them or by informal arrangement. Finally, appellant occasionally assisted its subsidiaries in their procurement of equipment, either by selling them used equipment of its own or by employing its own purchasing department to act as an agent for the subsidiaries." Id., at 173. Based on these facts, we found that the taxpayer had not met its burden of showing by "`"clear and cogent evidence"'" that the State sought to tax extraterritorial values. Id. at 175, 164 (quoting Exxon Corp., supra, at 221, in turn quoting Butler Brothers v. McColgan, , in turn quoting Norfolk & Western R. Co. v. North Carolina ex rel. Maxwell, ). In the course of our decision in Container Corp., we reaffirmed that the constitutional test focuses on functional integration, centralization of management, and economies of scale. 463 U.S., at 179 (citing Woolworth, supra, at 364; Mobil Oil, supra, at 438). We also reiterated that a unitary business may exist without a flow of goods between the parent and subsidiary if, instead, there is a flow of value between the entities. Id., at 178. The principal virtue of the unitary business principle of taxation is that it does a better job of accounting for "the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise" than, for example, geographical or transactional accounting. Id., at 164-165 (citing Mobil Oil, 445 U.S., at 438-439).Notwithstanding the Court's long experience in applying the unitary business principle, New Jersey and several amici curiae argue that it is not an appropriate means for distinguishing between income generated within a State and income generated without. New Jersey has not persuaded us to depart from the doctrine of stare decisis by overruling our cases that announce and follow the unitary business standard. In deciding whether to depart from a prior decision, one relevant consideration is whether the decision is "unsound in principle." Garcia v. San Antonio Metropolitan Transit Authority, . Another is whether it is "unworkable in practice." Ibid. And, of course, reliance interests are of particular relevance because "[a]dherence to precedent promotes stability, predictability, and respect for judicial authority." Hilton v. South Carolina Public Railways Comm'n, (citing Vasquez v. Hillery, ). See also Quill Corp. v. North Dakota, 504 U.S., at ___ (industry's reliance justifies adherence to precedent); id., at ___ (SCALIA, J., concurring in part and concurring in judgment) (same). Against this background we address the arguments of New Jersey and its amici. New Jersey contends that the unitary business principle must be abandoned in its entirety, arguing that a nondomiciliary State should be permitted "to apportion all the income of a separate multistate corporate taxpayer." Brief for Respondent on Reargument 27. According to New Jersey, the unitary business principle does not reflect economic reality, while its proposed theory does. We are not convinced.New Jersey does not appear to dispute the basic proposition that a State may not tax value earned outside its borders. It contends instead that all income of a corporation doing any business in a State is, by virtue of common ownership, part of the corporation's unitary business, and apportionable. See Tr. of Oral Arg. 25-26 (Apr. 22, 1992). New Jersey's sweeping theory cannot be reconciled with the concept that the Constitution places limits on a State's power to tax value earned outside of its borders. To be sure, our cases give States wide latitude to fashion formulae designed to approximate the in-state portion of value produced by a corporation's truly multistate activity. But that is far removed from New Jersey's theory that any business in the State, no matter how small or unprofitable, subjects all of a corporation's out-of-state income, no matter how discrete, to apportionment.According to New Jersey, Brief for Respondent on Reargument 11, there is no logical distinction between short-term investment of working capital, which all concede is apportionable, see Reply Brief for Petitioner on Reargument 4-5, and n. 3; Tr. of Oral Arg. 7-8 (Apr. 22, 1992); Container Corp., supra, at 180, n. 19, and all other investments. The same point was advanced by the dissent in ASARCO, 458 U.S., at 337 (opinion of O'CONNOR, J.). New Jersey's basic theory is that multistate corporations like Bendix regard all of their holdings as pools of assets, used for maximum long-term profitability, and that any distinction between operational and investment assets is artificial. We may assume, arguendo, that the managers of Bendix cared most about the profits entry on a financial statement, but that state of mind sheds little light on the question whether, in pursuing maximum profits, they treated particular intangible assets as serving, on the one hand, an investment function, or, on the other, an operational function. See Container Corp., supra, at 180, n. 19. That is the relevant unitary business inquiry, one which focuses on the objective characteristics of the asset's use and its relation to the taxpayer and its activities within the taxing State. It is an inquiry to which our cases give content, and which is necessary if the limits of the Due Process and Commerce Clauses are to have substance in a modern economy. In short, New Jersey's suggestion is not in accord with the well-established and substantial case law interpreting the Due Process and Commerce Clauses.Our precedents are workable in practice; indeed, New Jersey conceded as much. See Tr. of Oral Arg. 37-38 (Apr. 22, 1992). If lower courts have reached divergent results in applying the unitary business principle to different factual circumstances, that is because, as we have said, any number of variations on the unitary business theme "are logically consistent with the underlying principles motivating the approach," Container Corp., supra, at 167, and also because the constitutional test is quite fact sensitive.Indeed, if anything would be unworkable in practice, it would be for us now to abandon our settled jurisprudence defining the limits of state power to tax under the unitary business principle. State legislatures have relied upon our precedents by enacting tax codes which allocate intangible nonbusiness income to the domiciliary State, see App. to Brief for Petitioner on Reargument 1a-7a (collecting statutes). Were we to adopt New Jersey's theory, we would be required either to invalidate those statutes or authorize what would be certain double taxation. And, of course, we would defeat the reliance interest of those corporations that have structured their activities and paid their taxes based upon the well-established rules we here confirm. Difficult questions respecting the retroactive effect of our decision would also be presented. See James B. Beam Distilling Co. v. Georgia, . New Jersey's proposal would disrupt settled expectations in an area of the law in which the demands of the national economy require stability.Not willing to go quite so far as New Jersey, some amici curiae urge us to modify, rather than abandon, the unitary business principle. See, e.g., Brief for Multistate Tax Commission as Amicus Curiae; Brief for Multistate Tax Commission as Amicus Curiae on Reargument; Brief for Chevron Corporation as Amicus Curiae. They urge us to hold that the Constitution does not require a unitary business relation between the payor and the payee in order for a State to apportion the income the payee corporation receives from an investment in the payor. Rather, they urge us to adopt as the constitutional test the standard set forth in the business income definition in 1(a) of the Uniform Division of Income for Tax Purposes Act (UDITPA), 7A U.L.A. 331, 336 (1985). Under UDITPA, "business income," which is apportioned, is defined as: "income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." UDITPA 1(a). "Non-business income," which is allocated, is defined as "all income other than business income." 1(e).In the abstract, these definitions may be quite compatible with the unitary business principle. See Container Corp., supra, at 167 (noting that most of the relevant provisions of the California statute under which we sustained the challenged tax there were derived from UDITPA). Furthermore, the unitary business principle is not so inflexible that, as new methods of finance and new forms of business evolve, it cannot be modified or supplemented where appropriate. It does not follow, though, that apportionment of all income is permitted by the mere fact of corporate presence within the State; and New Jersey offers little more in support of the decision of the State Supreme Court.We agree that the payee and the payor need not be engaged in the same unitary business as a prerequisite to apportionment in all cases. Container Corp. says as much. What is required instead is that the capital transaction serve an operational, rather than an investment, function. 463 U.S., at 180, n. 19. Hence, in ASARCO, although we rejected the dissent's factual contention that the stock investments there constituted "interim uses of idle funds `accumulated for the future operation of [the taxpayer's]... business [operation],'" we did not dispute the suggestion that had that been so the income would have been apportionable. 458 U.S., at 325, n. 21.To be sure, the existence of a unitary relation between the payor and the payee is one means of meeting the constitutional requirement. Thus, in ASARCO and Woolworth, we focused on the question whether there was such a relation. We did not purport, however, to establish a general requirement that there be a unitary relation between the payor and the payee to justify apportionment, nor do we do so today.It remains the case that, "[i]n order to exclude certain income from the apportionment formula, the company must prove that `the income was earned in the course of activities unrelated to [those carried out in the taxing] State.'" Exxon Corp. v. Wisconsin Dept. of Revenue, (quoting Mobil Oil Corp. v. Commissioner of Taxes, ). The existence of a unitary relation between payee and payor is one justification for apportionment, but not the only one. Hence, for example, a State may include within the apportionable income of a nondomiciliary corporation the interest earned on short-term deposits in a bank located in another State if that income forms part of the working capital of the corporation's unitary business, notwithstanding the absence of a unitary relationship between the corporation and the bank. That circumstance, of course, is not at all presented here. See infra, this page and 789.IIIApplication of the foregoing principles to the present case yields a clear result: The stipulated factual record now before us presents an even weaker basis for inferring a unitary business than existed in either ASARCO or Woolworth, making this an a fortiori case. There is no serious contention that any of the three factors upon which we focused in Woolworth were present. Functional integration and economies of scale could not exist because, as the parties have stipulated, "Bendix and Asarco were unrelated business enterprises each of whose activities had nothing to do with the other." App. 169. Moreover, because Bendix owned only 20.6% of ASARCO's stock, it did not have the potential to operate ASARCO as an integrated division of a single unitary business, and of course, even potential control is not sufficient. Woolworth, 458 U.S., at 362. There was no centralization of management.Furthermore, contrary to the view expressed below by the New Jersey Supreme Court, see 125 N.J., at 36-37, 592 A.2d, at 544-545, the mere fact that an intangible asset was acquired pursuant to a long-term corporate strategy of acquisitions and dispositions does not convert an otherwise passive investment into an integral operational one. Indeed, in Container Corp., we noted the important distinction between a capital transaction that serves an investment function and one that serves an operational function. 463 U.S., at 180, n. 19 (citing Corn Products Refining Co. v. Commissioner, ). If that distinction is to retain its vitality, then, as we held in ASARCO, the fact that a transaction was undertaken for a business purpose does not change its character. 458 U.S., at 326. Idaho had argued that intangible property income could be treated as earned in the course of a unitary business if the intangible property which produced that income is "`acquired, managed or disposed of for purposes relating or contributing to the taxpayer's business.'" Ibid. (quoting Brief for Appellee 4). In rejecting the argument we observed: "This definition of unitary business would destroy the concept. The business of a corporation requires that it earn money to continue operations and to provide a return on its invested capital. Consequently all of its operations, including any investment made, in some sense can be said to be "for purposes related to or contributing to the [corporation's] business." When pressed to its logical limit, this conception of the "unitary business" limitation becomes no limitation at all." 458 U.S., at 326. Apart from semantics, we see no distinction between the "purpose" test we rejected in ASARCO and the "ingrained acquisition-divestiture policy" approach adopted by the New Jersey Supreme Court. 125 N.J., at 36, 592 A.2d, at 544. The hallmarks of an acquisition that is part of the taxpayer's unitary business continue to be functional integration, centralization of management, and economies of scale. Container Corp. clarified that these essentials could respectively be shown by: transactions not undertaken at arm's length, 463 U.S., at 180, n. 19; a management role by the parent that is grounded in its own operational expertise and operational strategy, ibid.; and the fact that the corporations are engaged in the same line of business. Id., at 178. It is undisputed that none of these circumstances existed here.The New Jersey Supreme Court also erred in relying on the fact that Bendix intended to use the proceeds of its gain from the sale of ASARCO to acquire Martin Marietta. Even if we were to assume that Martin Marietta, once acquired, would have been operated as part of Bendix's unitary business, that reveals little about whether ASARCO was run as part of Bendix's unitary business. Nor can it be maintained that Bendix's shares of ASARCO stock, which it held for over two years, amounted to a short-term investment of working capital analogous to a bank account or certificate of deposit. See Container Corp., 463 U.S., at 180, n. 19; ASARCO, 458 U.S., at 325, n. 21.In sum, the agreed-upon facts make clear that, under our precedents, New Jersey was not permitted to include the gain realized on the sale of Bendix's ASARCO stock in the former's apportionable tax base.The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.JUSTICE O'CONNOR, with whom the CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE THOMAS join, dissenting.In my view, petitioner has not shown by "clear and cogent evidence" that its investment in ASARCO was not operationally related to the aerospace business petitioner conducted in New Jersey. Exxon Corp. v. Department of Revenue of Wis., (internal quotation marks omitted). Though I am largely in agreement with the Court's analysis, I part company on the application of it here.I agree with the Court that we cannot adopt New Jersey's suggestion that the unitary business principle be replaced by a rule allowing a State to tax a proportionate share of all the income generated by any corporation doing business there. See ante, at 12-13. Were we to adopt a rule allowing taxation to depend upon corporate identity alone, as New Jersey suggests, the entire due process inquiry would become fictional, as the identities of corporations would fracture in a corporate shell game to avoid taxation. Under New Jersey's theory, for example, petitioner could avoid having its ASARCO investment taxed in New Jersey simply by establishing a separate subsidiary to hold those earnings outside New Jersey. A constitutional principle meant to ensure that States tax only business activities they can reasonably claim to have helped support should depend on something more than manipulations of corporate structure. See Mobil Oil Corp. v. Commissioner of Taxes of Vt., ("The form of business organization may have nothing to do with the underlying unity or diversity of business enterprise"); Fargo v. Hart, (refusing to find unitary business even though single owner); Adams Express Co. v. Ohio State Auditor, (same).New Jersey suggests that we should presume that all the holdings of a single corporation are mutually interdependent because common ownership will stabilize profits from the commonly held businesses, generating flows of value between them that make them part of a unity. While it may be true that many corporations attempt to diversify their holdings to avoid business cycles, we have refused to presume a flow of value into an in-state business from the potential benefits of being part of a larger multistate, multibusiness corporation. The reason for this is simple: Diversification may benefit the corporation as an entity without necessarily affecting the business activity in the taxing State and without requiring any support from the taxing State. See Wisconsin v. J. C. Penney Co., (State may not tax where it has not "given anything for which it can ask return").I also agree with the Court that there need not be a unitary relationship between the underlying business of a taxpayer and the companies in which it invests in order for a State to tax investment income. See ante, at 16. "[A]ctive operational control" of the investment income payor by the taxpayer is certainly not required. ASARCO Inc. v. Idaho Tax Comm'n, (O'Connor, J., dissenting). Insofar as a requirement that the investment payor and payee be unitary was suggested by our decisions in ASARCO and F. W. Woolworth Co. v. Taxation and Revenue Dept. of N. M., , petitioner concedes that was a "doctrinal foot fault." Reply Brief for Petitioner on Reargument 4. Although a unitary relationship between the investment income payor and payee would suffice to relate the investment income to the in-state business, such a connection is not necessary. Taxation of investment income received from a nondomiciliary taxpayer's investment in another corporation requires only that the investment income be sufficiently related to the taxpayer's in-state business, not that the taxpayer's business and the corporation in which it invests be unitary. Only when the State seeks to tax directly the income of a nondomiciliary taxpayer's subsidiary or affiliate through combined reporting, see Container Corp. of America v. Franchise Tax Bd., , and n. 7 (1983), must the underlying businesses of the taxpayer and its affiliate or subsidiary be unitary. In any case, the key question for purposes of due process is whether the income that the State seeks to tax is, by the time it is realized, sufficiently related to a unitary business, part of which operates in the taxing State.In this connection, I agree with the Court that out-of-state investments serving an operational function in the nondomiciliary taxpayer's in-state business are sufficiently related to that business to be taxed. In particular, I agree that "`interim uses of idle funds "accumulated for the future operation of [the taxpayer's] business [operation],"'" may be taxed. Ante, at 16 (quoting ASARCO, supra, at 325, n. 21). The Court, however, leaves "operational function" largely undefined. I presume that the Court's test allows taxation in at least those circumstances in which it is allowed by the Uniform Division of Income for Tax Purposes Act (UDITPA). Ante, at 15. UDITPA counts as apportionable business income from "tangible and intangible property if the acquisition, management, and disposition of the property constitute integral parts of the taxpayer's regular trade or business operations." UDITPA 1(a), 7A U.L.A. 336 (1985) (emphasis added). Presumably, investment income serves an operational function if it is, to give only some examples, intended to be used by the time it is realized for making the business' anticipated payments; for expanding or replacing plants and equipment; or for acquiring other unitary businesses that will serve the in-state business as stable sources of supply or demand, or that will generate economies of scale or savings in administration.In its application of these principles to this case, however, I diverge from the Court's analysis. The Court explains that, while "interest earned on short-term deposits in a bank located in another State" may be taxed "if that income forms part of the working capital of the corporation's unitary business," petitioner's longer term investment in ASARCO may not be taxed. Ante, at 16. The Court finds the investment here not to be operational, because it was not analogous to a "short-term investment of working capital analogous to a bank account or certificate of deposit." Ante, at 790.Any distinction between short-term and long-term investments cannot be of constitutional dimension. Whether an investment is short-term or long-term, what matters for due process purposes is whether the investment is operationally related to the in-state business. "The interim investment of retained earnings prior to their commitment to a major corporate project ... merely recapitulates on a grander scale the short-term investment of working capital prior to its commitment to the daily financial needs of the company." ASARCO, supra, at 338 (O'Connor, J., dissenting). I see no distinction relevant to due process between investing in a company in order to build capital to acquire a second company related to the in-state business and, for example, "leas[ing] for a term of years the areas of [the taxpayer's] office buildings into which it intends ultimately to expand," which could hardly be claimed to set up a "separate and unrelated leasing business." Id., at 338, n. 6. The link between the ASARCO investment here and the in-state business is closer than the Court suggests. It is not just that the ASARCO investment was made to benefit Bendix as a corporate entity. As the Court points out, any investment a corporation makes is intended to benefit the corporation in general. Ante, at 18. The proper question is, rather: was the income New Jersey seeks to tax intended to be used to benefit a unitary business of which Bendix's New Jersey operations were a part?Petitioner has not carried the heavy burden of showing by clear and cogent evidence that the capital gains from ASARCO were not operationally related to its instate business. See Container Corp., supra, at 175. Though this case comes to us on a stipulated record, there is no stipulation that the ASARCO capital gains were not intended to be used to benefit a unitary business, part of which operated in New Jersey. Instead, the record suggests that, by the time the capital gains were realized, at least some of the income was intended to be used in the attempt to acquire a corporation also engaged in the aerospace industry. App. 70-71, 81, 193. The acquisition of Martin Marietta, had it succeeded, would have been part of petitioner's unitary aerospace business, part of which operated in New Jersey. Id., at 194. As the New Jersey Supreme Court found: "[T]he purpose of acquiring Martin Marietta was to complement the aerospace-electronics facets of Bendix business, some of which are located in New Jersey... . Even though the Martin Marietta takeover never came to fruition, the fact that it served as a goal for part of the capital generated by the sales of ASARCO ... stock nurtures the premise that Bendix's ingrained policy of acquisitions and divestitures projected the existence of a unitary business." Bendix Corp. v. Director, Div. of Taxation, 125 N. J. 20, 38, 592 A. 2d 536, 545 (1991). We will,"if reasonably possible, defer to the judgment of state courts in deciding whether a particular set of activities constitutes a `unitary business.'" Container Corp., supra, at 175. Because petitioner has failed to show by clear and cogent evidence that the income derived from the ASARCO investment was not related to the operations of its unitary aerospace business, part of which was in New Jersey, New Jersey should be able to apportion and tax that income. As the Court holds that it may not, I must respectfully dissent. |
0 | A state prisoner filed a habeas corpus petition in the Federal District Court, alleging that the admission of certain evidence at his trial was improper because the evidence had been seized incident to an arrest based upon information from an unreliable informant. The District Court ordered an evidentiary hearing and the prisoner served on respondent a series of interrogatories pursuant to Rule 33 of the Federal Rules of Civil Procedure designed to establish the informant's unreliability. The District Court overruled respondent's objections that there was no authority for issuance of the interrogatories. Upon respondent's petition for a writ of mandamus or prohibition the Court of Appeals vacated the District Court's order authorizing the interrogatories, on the grounds that Rule 81 (a) (2) made the discovery procedures of the Federal Rules of Civil Procedure inapplicable to habeas corpus proceedings and that the statutory provision for interrogatories in habeas corpus proceedings (28 U.S.C. 2246) did not authorize their use for discovery. Rule 81 (a) (2) at that time provided that the Rules did not apply to habeas corpus proceedings "except to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in actions at law or suits in equity." Held: 1. Federal courts upon an appropriate showing must grant evidentiary hearings to petitioners for writs of habeas corpus and "the power of inquiry on federal habeas corpus is plenary." Townsend v. Sain, . Pp. 290-292. 2. The intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure make it clear that Rule 81 (a) (2) excludes the application of Rule 33 in habeas corpus proceedings. Pp. 292-298. 3. Section 2246 of 28 U.S.C. does not authorize interrogatories in habeas corpus proceedings except in limited circumstances not applicable to this case. Pp. 290, 296. 4. A district court considering a petition for habeas corpus is free to use or authorize interrogatories or other suitable discovery procedures reasonably fashioned to elicit facts to help the court "dispose of the matter as law and justice require." 28 U.S.C. 2243. Pp. 290, 298-300. 5. Since Congress has not specified comprehensive procedures for securing the facts which federal courts must have to dispose of habeas corpus petitions, the courts may fashion appropriate procedures for development of relevant facts, by analogy to existing rules or judicial usages. Their authority to do so is confirmed by the All Writs Act, 28 U.S.C. 1651. Pp. 298-300. 378 F.2d 141, reversed and remanded.J. Stanley Pottinger, by appointment of the Court, , argued the cause and filed briefs for petitioner.Derald E. Granberg, Deputy Attorney General of California, argued the cause for respondent. With him on the briefs were Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, and Charles R. B. Kirk, Deputy Attorney General, joined in and adopted by the Attorneys General and other officials of their respective jurisdictions as follows: MacDonald Gallion of Alabama, Gary K. Nelson of Arizona, Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Bert T. Kobayashi of Hawaii, William G. Clark of Illinois, John J. Dillon of Indiana, Richard C. Turner of Iowa, John B. Breckinridge of Kentucky, Jack P. F. Gremillion of Louisiana, James S. Erwin of Maine, Francis B. Burch of Maryland, Elliot L. Richardson of Massachusetts, Douglas M. Head of Minnesota, Joe T. Patterson of Mississippi, Clarence A. H. Meyer of Nebraska, Harvey Dickerson of Nevada, Arthur J. Sills of New Jersey, Boston E. Witt of New Mexico, Louis J. Lefkowitz of New York, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, William B. Saxbe of Ohio, G. T. Blankenship of Oklahoma, William C. Sennett of Pennsylvania, Herbert F. DeSimone of Rhode Island, Daniel R. McLeod of South Carolina, George F. McCanless of Tennessee, James L. Oakes of Vermont, Robert Y. Button and Reno S. Harp III of Virginia, John J. O'Connell of Washington, Bronson C. LaFollette of Wisconsin, and Paul J. Abbate of Guam; and by the National District Attorneys' Association.Jerome M. Feit argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, John S. Martin, Jr., and Paul C. Summitt.Jack Greenberg, James M. Nabrit III, Michael Meltsner, and Anthony G. Amsterdam filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal.Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Amy Juviler and Joel H. Sachs, Assistant Attorneys General, filed a brief for the State of New York as amicus curiae urging affirmance.MR. JUSTICE FORTAS delivered the opinion of the Court.This case presents the question whether state prisoners who have commenced habeas corpus proceedings in a federal district court may, in proper circumstances, utilize the instrument of interrogatories for discovery purposes. I. Petitioner is the Chief Judge of the United States District Court for the Northern District of California. Respondent is the warden of the California State Prison at San Quentin. The proceeding was initiated by Alfred Walker who had been convicted in the California courts of the crime of possession of marihuana. After exhausting state remedies, he filed a petition for habeas corpus in the Federal District Court, alleging that evidence seized in the search incident to his arrest was improperly admitted at his trial. The basis for this claim was his allegation that the arrest and incidental search were based solely on the statement of an informant who, according to Walker's sworn statement, was not shown to have been reliable; who, in fact, was unreliable; and whose statements were accepted by the police without proper precautionary procedures.The District Court issued an order to show cause and respondent made return. Thereafter, Walker filed a motion for an evidentiary hearing, which the District Court granted. Two months later, Walker served upon the respondent warden a series of interrogatories, pursuant to Rule 33 of the Federal Rules of Civil Procedure, seeking discovery of certain facts directed to proof of the informant's unreliability. Respondent filed objections to the interrogatories, alleging the absence of authority for their issuance. The District Judge, without stating his reasons, disallowed the objections and directed that the interrogatories be answered. Respondent applied to the Court of Appeals for the Ninth Circuit for a writ of mandamus or prohibition. The Ninth Circuit vacated the order of the District Court. It held that the discovery provisions of the Federal Rules of Civil Procedure were not applicable to habeas corpus proceedings and that 28 U.S.C. 2246, the statutory provision specifically relating to the use of interrogatories in habeas corpus proceedings, did not authorize their use for discovery. Wilson v. Harris, 378 F.2d 141 (1967).Because of the importance of the questions presented and the diversity of views among the district and appellate courts that have considered the problem,1 we granted certiorari. . We agree with the Ninth Circuit that Rule 33 of the Federal Rules of Civil Procedure is not applicable to habeas corpus proceedings and that 28 U.S.C. 2246 does not authorize interrogatories except in limited circumstances not applicable to this case; but we conclude that, in appropriate circumstances, a district court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery procedures, including interrogatories, reasonably fashioned to elicit facts necessary to help the court to "dispose of the matter as law and justice require." 28 U.S.C. 2243. Accordingly, we reverse and remand the case in order that the District Court may reconsider the matter before it in light of our opinion and judgment. II. The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended ... ." U.S. Const., Art. I, 9, cl. 2. The scope and flexibility of the writ - its capacity to reach all manner of illegal detention - its ability to cut through barriers of form and procedural mazes - have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.As Blackstone phrased it, habeas corpus is "the great and efficacious writ, in all manner of illegal confinement."2 As this Court said in Fay v. Noia, , the office of the writ is "to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints." See Peyton v. Rowe, .It is now established beyond the reach of reasonable dispute that the federal courts not only may grant evidentiary hearings to applicants, but must do so upon an appropriate showing. Townsend v. Sain, ; Brown v. Allen, , n. 19 (1953). And this Court has emphasized, taking into account the office of the writ and the fact that the petitioner, being in custody, is usually handicapped in developing the evidence needed to support in necessary detail the facts alleged in his petition, that a habeas corpus proceeding must not be allowed to founder in a "procedural morass." Price v. Johnston, .There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law. This Court has insistently said that the power of the federal courts to conduct inquiry in habeas corpus is equal to the responsibility which the writ involves: "The language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary." Townsend v. Sain, supra, at 312.In the present case, we are confronted with a procedural problem which tests the reality of these great principles. We are asked by Walker to establish the existence of rights for those in custody to discover facts which may aid their petitions for release. We are asked to do this by declaring that the provisions of the Federal Rules of Civil Procedure granting such rights to litigants in civil causes are available to Walker; or if we refuse so to conclude, to affirm the existence of power in the District Court to authorize discovery by written interrogatories. We address ourselves to those issues. III. Rule 1 of the Federal Rules of Civil Procedure provides that: "These rules govern the procedure in the United States district courts in all suits of a civil nature ... with the exceptions stated in Rule 81." At the time of the decision below Rule 81 (a) (2) provided, in relevant part, that the Rules were not applicable in habeas corpus "except to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in actions at law or suits in equity."3 The Court of Appeals for the Ninth Circuit held that the second requirement - "conformity" with practice - made it necessary to show that "prior to September 16, 1938, discovery was actually being used in habeas proceedings, and that such use conformed to the then discovery practice in actions at law or suits in equity." 378 F.2d, at 144. No such showing was made and it is not here contended that it can be made. Walker contends, however, that the rule requires only a showing that habeas proceedings conformed generally to pre-existing practice in law and equity, and he contends that this general requirement is met.We need not consider this contention that the Court of Appeals took an unnecessarily restricted view of the thrust of the "conformity" requirement, because for other reasons we conclude that the intended scope of the Federal Rules of Civil Procedure and the history of habeas corpus procedure, make it clear that Rule 81 (a) (2) must be read to exclude the application of Rule 33 in habeas corpus proceedings.It is, of course, true that habeas corpus proceedings are characterized as "civil." See, e. g., Fisher v. Baker, . But the label is gross and inexact.4 Essentially, the proceeding is unique. Habeas corpus practice in the federal courts has conformed with civil practice only in a general sense. There is no indication that with respect to pretrial proceedings for the development of evidence, habeas corpus practice had conformed to the practice at law or in equity "to the extent" that the application of rules newly developed in 1938 to govern discovery in "civil" cases should apply in order to avoid a divergence in practice which had theretofore been substantially uniform. Although there is little direct evidence, relevant to the present problem, of the purpose of the "conformity" provision of Rule 81 (a) (2), the concern of the draftsmen, as a general matter, seems to have been to provide for the continuing applicability of the "civil" rules in their new form to those areas of practice in habeas corpus and other enumerated proceedings in which the "specified" proceedings had theretofore utilized the modes of civil practice. Otherwise, those proceedings were to be considered outside of the scope of the rules without prejudice, of course, to the use of particular rules by analogy or otherwise, where appropriate.5 Such specific evidence as there is with respect to the intent of the draftsmen of the rules indicates nothing more than a general and nonspecific understanding that the rules would have very limited application to habeas corpus proceedings. At the very least, it is clear that there was no intention to extend to habeas corpus, as a matter of right, the broad discovery provisions which, even in ordinary civil litigation, were "one of the most significant innovations" of the new rules. Hickman v. Taylor, . Walker does not claim that there was any general discovery practice in habeas corpus proceedings prior to adoption of the Federal Rules of Civil Procedure.In considering the intended application of the new rules to habeas corpus, it is illuminating to note that in 1938 the expansion of federal habeas corpus to its present scope was only in its early stages. Mooney v. Holohan, ; Johnson v. Zerbst, ; Waley v. Johnston, . It was not until many years later that the federal courts considering a habeas corpus petition were held to be required in many cases to make an independent determination of the factual basis of claims that state convictions had violated the petitioner's federal constitutional rights. Brown v. Allen, ; Townsend v. Sain, . In these circumstances it is readily understandable that, as indicated by the language and the scanty contemporary exegesis of Rule 81 (a) (2) which is available, the draftsmen of the rule did not contemplate that the discovery provisions of the rules would be applicable to habeas corpus proceedings.It is also of some relevance that in 1948, when Congress enacted 28 U.S.C. 2246 expressly referring to the right of parties in habeas corpus proceedings to propound written interrogatories, its legislation was limited to interrogatories for the purpose of obtaining evidence from affiants where affidavits were admitted in evidence. Again, the restricted scope of this legislation indicates that the adoption in 1938 of the Federal Rules of Civil Procedure was not intended to make available in habeas corpus proceedings the discovery provisions of those rules.Indeed, it is difficult to believe that the draftsmen of the Rules or Congress would have applied the discovery rules without modification to habeas corpus proceedings because their specific provisions are ill-suited to the special problems and character of such proceedings. For example, Rule 33, which Walker here invoked, provides for written interrogatories to be served by any party upon any "adverse party." As the present case illustrates, this would usually mean that the prisoner's interrogatories must be directed to the warden although the warden would be unable to answer from personal knowledge questions relating to petitioner's arrest and trial. Presumably the warden could solicit answers from the appropriate officials and reply "under oath," as the rule requires; but the warden is clearly not the kind of "adverse party" contemplated by the discovery rules, and the result of their literal application would be to invoke a procedure which is circuitous, burdensome, and time consuming.The scope of interrogatories which may be served under Rule 33 also indicates the unsuitability of applying to habeas corpus provisions which were drafted without reference to its peculiar problems. By reference to Rule 26 (b), the rule would give the prisoner a right to inquire into "any matter, not privileged, which is relevant to the subject matter involved in the pending action," whether admissible at trial or not. This rule has been generously construed to provide a great deal of latitude for discovery. See Hickman v. Taylor, supra, at 507; 2A Barron & Holtzoff, supra, 646. Such a broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of a habeas corpus proceeding.Except for interrogatories to be served by the "plaintiff" within 10 days after the commencement of "the action," Rule 33 provides that the interrogatories may be served without leave of court. The "adverse party" must then take the initiative to contest the interrogatories and a hearing in court on his objections is required. Unavoidably, unless there is a measure of responsibility in the originator of the proceeding, the "plaintiff" or petitioner, this procedure can be exceedingly burden-some and vexatious. The interrogatory procedure would be available to the prisoners themselves since most habeas petitions are prepared and filed by prisoners, generally without the guidance or restraint of members of the bar. For this reason, too, we conclude that the literal application of Rule 33 to habeas corpus proceedings would do violence to the efficient and effective administration of the Great Writ. The burden upon courts, prison officials, prosecutors, and police, which is necessarily and properly incident to the processing and adjudication of habeas corpus proceedings, would be vastly increased; and the benefit to prisoners would be counterbalanced by the delay which the elaborate discovery procedures would necessarily entail.It is true that the availability of Rule 33 would provide prisoners with an instrument of discovery which could be activated on their own initiative, without prior court approval, and that this would be of considerable tactical advantage to them in the prosecution of their efforts to demonstrate such error in their trial as would result in their release. But despite the forceful and ingenious argument of Walker's counsel and amici curiae,6 this consideration cannot carry the day. It is a long march from this contention to a conclusion that the discovery provisions of the Federal Rules of Civil Procedure were intended to extend to habeas corpus proceedings. We have no power to rewrite the Rules by judicial interpretations. We have no power to decide that Rule 33 applies to habeas corpus proceedings unless, on conventional principles of statutory construction, we can properly conclude that the literal language or the intended effect of the Rules indicates that this was within the purpose of the draftsmen or the congressional understanding. IV. To conclude that the Federal Rules' discovery provisions do not apply completely and automatically by virtue of Rule 81 (a) (2) is not to say that there is no way in which a district court may, in an appropriate case, arrange for procedures which will allow development, for purposes of the hearing, of the facts relevant to disposition of a habeas corpus petition. Petitioners in habeas corpus proceedings, as the Congress and this Court have emphasized, and as we have discussed, supra, at 290-292, are entitled to careful consideration and plenary processing of their claims including full opportunity for presentation of the relevant facts. Congress has provided that once a petition for a writ of habeas corpus is filed, unless the court is of the opinion that the petitioner is not entitled to an order to show cause, the writ must be awarded "forthwith," or an order to show cause must be issued. 28 U.S.C. 2243. Thereafter, if the court concludes that the petitioner is entitled to an evidentiary hearing, cf. Townsend v. Sain, supra; 28 U.S.C. 2254, it shall order one to be held promptly. 28 U.S.C. 2243.Flexible provision is made for taking evidence by oral testimony, by deposition, or upon affidavit and written interrogatory. 28 U.S.C. 2246. Cf. 2245, 2254 (e). The court shall "summarily hear and determine the facts, and dispose of the matter as law and justice require." 28 U.S.C. 2243. But with respect to methods for securing facts where necessary to accomplish the objective of the proceedings Congress has been largely silent. Clearly, in these circumstances, the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage. Where their duties require it, this is the inescapable obligation of the courts. Their authority is expressly confirmed in the All Writs Act, 28 U.S.C. 1651. This statute has served since its inclusion, in substance, in the original Judiciary Act as a "legislatively approved source of procedural instruments designed to achieve `the rational ends of law.'" Price v. Johnston, , quoting Adams v. United States ex rel. McCann, . It has been recognized that the courts may rely upon this statute in issuing orders appropriate to assist them in conducting factual inquiries. American Lithographic Co. v. Werckmeister, (subpoenas duces tecum); Bethlehem Shipbuilding Corp. v. NLRB, 120 F.2d 126, 127 (C. A. 1st Cir. 1941) (order that certain documents be produced for the purpose of pretrial discovery). In Price v. Johnston, supra, this Court held explicitly that the purpose and function of the All Writs Act to supply the courts with the instruments needed to perform their duty, as prescribed by the Congress and the Constitution, provided only that such instruments are "agreeable" to the usages and principles of law, extend to habeas corpus proceedings.At any time in the proceedings, when the court considers that it is necessary to do so in order that a fair and meaningful evidentiary hearing may be held so that the court may properly "dispose of the matter as law and justice require," either on its own motion or upon cause shown by the petitioner, it may issue such writs and take or authorize such proceedings with respect to development, before or in conjunction with the hearing of the facts relevant to the claims advanced by the parties, as may be "necessary or appropriate in aid of [its jurisdiction] ... and agreeable to the usages and principles of law." 28 U.S.C. 1651.We do not assume that courts in the exercise of their discretion will pursue or authorize pursuit of all allegations presented to them. We are aware that confinement sometimes induces fantasy which has its basis in the paranoia of prison rather than in fact. But where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry. Obviously, in exercising this power, the court may utilize familiar procedures, as appropriate, whether these are found in the civil or criminal rules or elsewhere in the "usages and principles of law."7 Accordingly, we reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case for further proceedings in accordance with this opinion. Reversed and remanded. |
4 | A "State has a legitimate interest in seeing to it that abortion . . . is performed under circumstances that insure maximum safety for the patient." Roe v. Wade, 410 U. S. 113, 150. But "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends," Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (plurality opinion), and "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right," id., at 878. In 2013, the Texas Legislature enacted House Bill 2 (H. B. 2), which contains the two provisions challenged here. The "admitting-privileges requirement" provides that a "physician performing or inducing an abortion . . . must, on the date [of service], have active admitting privileges at a hospital . . . located not further than 30 miles from the" abortion facility. The "surgical-center requirement" requires an "abortion facility" to meet the "minimum standards . . . for ambulatory surgical centers" under Texas law. Before the law took effect, a group of Texas abortion providers filed the Abbott case, in which they lost a facial challenge to the constitutionality of the admitting-privileges provision. After the law went into effect, petitioners, another group of abortion providers (including some Abbott plaintiffs), filed this suit, claiming that both the admitting-privileges and the surgical-center provisions violated the Fourteenth Amendment, as interpreted in Casey. They sought injunctions preventing enforcement of the admitting-privileges provision as applied to physicians at one abortion facility in McAllen and one in El Paso and prohibiting enforcement of the surgical-center provision throughout Texas. Based on the parties' stipulations, expert depositions, and expert and other trial testimony, the District Court made extensive findings, including, but not limited to: as the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20; this decrease in geographical distribution means that the number of women of reproductive age living more than 50 miles from a clinic has doubled, the number living more than 100 miles away has increased by 150%, the number living more than 150 miles away by more than 350%, and the number living more than 200 miles away by about 2,800%; the number of facilities would drop to seven or eight if the surgical-center provision took effect, and those remaining facilities would see a significant increase in patient traffic; facilities would remain only in five metropolitan areas; before H. B. 2's passage, abortion was an extremely safe procedure with very low rates of complications and virtually no deaths; it was also safer than many more common procedures not subject to the same level of regulation; and the cost of compliance with the surgical-center requirement would most likely exceed $1.5 million to $3 million per clinic. The court enjoined enforcement of the provisions, holding that the surgical-center requirement imposed an undue burden on the right of women in Texas to seek previability abortions; that, together with that requirement, the admitting-privileges requirement imposed an undue burden in the Rio Grande Valley, El Paso, and West Texas; and that the provisions together created an "impermissible obstacle as applied to all women seeking a previability abortion." The Fifth Circuit reversed in significant part. It concluded that res judicata barred the District Court from holding the admitting-privileges requirement unconstitutional statewide and that res judicata also barred the challenge to the surgical-center provision. Reasoning that a law is "constitutional if (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and (2) it is reasonably related to . . . a legitimate state interest," the court found that both requirements were rationally related to a compelling state interest in protecting women's health. Held: 1. Petitioners' constitutional claims are not barred by res judicata. Pp. 10-18. (a) Res judicata neither bars petitioners' challenges to the admitting-privileges requirement nor prevents the Court from awarding facial relief. The fact that several petitioners had previously brought the unsuccessful facial challenge in Abbott does not mean that claim preclusion, the relevant aspect of res judicata, applies. Claim preclusion prohibits "successive litigation of the very same claim," New Hampshire v. Maine, 532 U. S. 742, 748, but petitioners' as-applied postenforcement challenge and the Abbott plaintiffs' facial preenforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. Abbott rested upon facts and evidence presented before enforcement of the admitting-privileges requirement began, when it was unclear how clinics would be affected. This case rests upon later, concrete factual developments that occurred once enforcement started and a significant number of clinics closed. Res judicata also does not preclude facial relief here. In addition to requesting as-applied relief, petitioners asked for other appropriate relief, and their evidence and arguments convinced the District Court of the provision's unconstitutionality across the board. Federal Rule of Civil Procedure 54(c) provides that a "final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings," and this Court has held that if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is "proper," Citizens United v. Federal Election Comm'n, 558 U. S. 310, 333. Pp. 10-15. (b) Claim preclusion also does not bar petitioners' challenge to the surgical-center requirement. In concluding that petitioners should have raised this claim in Abbott, the Fifth Circuit did not take account of the fact that the surgical-center provision and the admitting-privileges provision are separate provisions with two different and independent regulatory requirements. Challenges to distinct regulatory requirements are ordinarily treated as distinct claims. Moreover, the surgical-center provision's implementing regulations had not even been promulgated at the time Abbott was filed, and the relevant factual circumstances changed between the two suits. Pp. 16-18. 2. Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a previability abortion, constitute an undue burden on abortion access, and thus violate the Constitution. Pp. 19-39. (a) The Fifth Circuit's standard of review may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when deciding the undue burden question, but Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer, see 505 U. S., at 887-898. The Fifth Circuit's test also mistakenly equates the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable to, e.g., economic legislation. And the court's requirement that legislatures resolve questions of medical uncertainty is inconsistent with this Court's case law, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures. See id., at 888-894. Explicit legislative findings must be considered, but there were no such findings in H. B. 2. The District Court applied the correct legal standard here, considering the evidence in the record — including expert evidence — and then weighing the asserted benefits against the burdens. Pp. 19-21. (b) The record contains adequate legal and factual support for the District Court's conclusion that the admitting-privileges requirement imposes an "undue burden" on a woman's right to choose. The requirement's purpose is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure, but the District Court, relying on evidence showing extremely low rates of serious complications before H. B. 2's passage, found no significant health-related problem for the new law to cure. The State's record evidence, in contrast, does not show how the new law advanced the State's legitimate interest in protecting women's health when compared to the prior law, which required providers to have a "working arrangement" with doctors who had admitting privileges. At the same time, the record evidence indicates that the requirement places a "substantial obstacle" in a woman's path to abortion. The dramatic drop in the number of clinics means fewer doctors, longer waiting times, and increased crowding. It also means a significant increase in the distance women of reproductive age live from an abortion clinic. Increased driving distances do not always constitute an "undue burden," but they are an additional burden, which, when taken together with others caused by the closings, and when viewed in light of the virtual absence of any health benefit, help support the District Court's "undue burden" conclusion. Pp. 21-28. (c) The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an "undue burden" on their constitutional right to do so. Before this requirement was enacted, Texas law required abortion facilities to meet a host of health and safety requirements that were policed by inspections and enforced through administrative, civil, and criminal penalties. Record evidence shows that the new provision imposes a number of additional requirements that are generally unnecessary in the abortion clinic context; that it provides no benefit when complications arise in the context of a medical abortion, which would generally occur after a patient has left the facility; that abortions taking place in abortion facilities are safer than common procedures that occur in outside clinics not subject to Texas' surgical-center requirements; and that Texas has waived no part of the requirement for any abortion clinics as it has done for nearly two-thirds of other covered facilities. This evidence, along with the absence of any contrary evidence, supports the District Court's conclusions, including its ultimate legal conclusion that requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court's conclusion that the requirement places a substantial obstacle in the path of women seeking an abortion. The court found that it "strained credulity" to think that the seven or eight abortion facilities would be able to meet the demand. The Fifth Circuit discounted expert witness Dr. Grossman's testimony that the surgical-center requirement would cause the number of abortions performed by each remaining clinic to increase by a factor of about 5. But an expert may testify in the "form of an opinion" as long as that opinion rests upon "sufficient facts or data" and "reliable principles and methods." Fed. Rule Evid. 702. Here, Dr. Grossman's opinion rested upon his participation, together with other university researchers, in research tracking the number of facilities providing abortion services, using information from, among other things, the state health services department and other public sources. The District Court acted within its legal authority in finding his testimony admissible. Common sense also suggests that a physical facility that satisfies a certain physical demand will generally be unable to meet five times that demand without expanding physically or otherwise incurring significant costs. And Texas presented no evidence at trial suggesting that expansion was possible. Finally, the District Court's finding that a currently licensed abortion facility would have to incur considerable costs to meet the surgical-center requirements supports the conclusion that more surgical centers will not soon fill the gap left by closed facilities. Pp. 28-36. (d) Texas' three additional arguments are unpersuasive. Pp. 36-39.790 F. 3d 563 and 598, reversed and remanded. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Ginsburg, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas, J., joined. Opinion of the Court 579 U. S. ____ (2016)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 15-274WHOLE WOMAN'S HEALTH, et al., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al.on writ of certiorari to the united states court of appeals for the fifth circuit[June 27, 2016] Justice Breyer delivered the opinion of the Court. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 878 (1992), a plurality of the Court concluded that there "exists" an "undue burden" on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the "purpose or effect" of the provision "is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." (Emphasis added.) The plurality added that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Ibid. We must here decide whether two provisions of Texas' House Bill 2 violate the Federal Constitution as interpreted in Casey. The first provision, which we shall call the "admitting-privileges requirement," says that"[a] physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced." Tex. Health & Safety Code Ann. §171.0031(a) (West Cum. Supp. 2015).This provision amended Texas law that had previously required an abortion facility to maintain a written protocol "for managing medical emergencies and the transfer of patients requiring further emergency care to a hospital." 38 Tex. Reg. 6546 (2013). The second provision, which we shall call the "surgical-center requirement," says that"the minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers." Tex. Health & Safety Code Ann. §245.010(a). We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1.IA In July 2013, the Texas Legislature enacted House Bill 2 (H. B. 2 or Act). In September (before the new law took effect), a group of Texas abortion providers filed an action in Federal District Court seeking facial invalidation of the law's admitting-privileges provision. In late October, the District Court granted the injunction. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 901 (WD Tex. 2013). But three days later, the Fifth Circuit vacated the injunction, thereby permitting the provision to take effect. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F. 3d 406, 419 (2013). The Fifth Circuit subsequently upheld the provision, and set forth its reasons in an opinion released late the following March. In that opinion, the Fifth Circuit pointed to evidence introduced in the District Court the previous October. It noted that Texas had offered evidence designed to show that the admitting-privileges requirement "will reduce the delay in treatment and decrease health risk for abortion patients with critical complications," and that it would " 'screen out' untrained or incompetent abortion providers." Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F. 3d 583, 592 (2014) (Abbott). The opinion also explained that the plaintiffs had not provided sufficient evidence "that abortion practitioners will likely be unable to comply with the privileges requirement." Id., at 598. The court said that all "of the major Texas cities, including Austin, Corpus Christi, Dallas, El Paso, Houston, and San Antonio," would "continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges." Ibid. The Abbott plaintiffs did not file a petition for certiorari in this Court.B On April 6, one week after the Fifth Circuit's decision, petitioners, a group of abortion providers (many of whom were plaintiffs in the previous lawsuit), filed the present lawsuit in Federal District Court. They sought an injunction preventing enforcement of the admitting-privileges provision as applied to physicians at two abortion facilities, one operated by Whole Woman's Health in McAllen and the other operated by Nova Health Systems in El Paso. They also sought an injunction prohibiting enforcement of the surgical-center provision anywhere in Texas. They claimed that the admitting-privileges provision and the surgical-center provision violated the Constitution's Fourteenth Amendment, as interpreted in Casey. The District Court subsequently received stipulations from the parties and depositions from the parties' experts. The court conducted a 4-day bench trial. It heard, among other testimony, the opinions from expert witnesses for both sides. On the basis of the stipulations, depositions, and testimony, that court reached the following conclusions: 1. Of Texas' population of more than 25 million people, "approximately 5.4 million" are "women" of "reproductive age," living within a geographical area of "nearly 280,000 square miles." Whole Woman's Health v. Lakey, 46 F. Supp. 3d 673, 681 (2014); see App. 244. 2. "In recent years, the number of abortions reported in Texas has stayed fairly consistent at approximately 15-16% of the reported pregnancy rate, for a total number of approximately 60,000-72,000 legal abortions performed annually." 46 F. Supp. 3d, at 681; see App. 238. 3. Prior to the enactment of H. B. 2, there were more than 40 licensed abortion facilities in Texas, which "number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013." 46 F. Supp. 3d, at 681; App. 228-231. 4. If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that "only seven facilities and a potential eighth will exist in Texas." 46 F. Supp. 3d, at 680; App. 182-183. 5. Abortion facilities "will remain only in Houston, Austin, San Antonio, and the Dallas/Fort Worth metropolitan region." 46 F. Supp. 3d, at 681; App. 229-230. These include "one facility in Austin, two in Dallas, one in Fort Worth, two in Houston, and either one or two in San Antonio." 46 F. Supp. 3d, at 680; App. 229-230. 6. "Based on historical data pertaining to Texas's average number of abortions, and assuming perfectly equal distribution among the remaining seven or eight providers, this would result in each facility serving between 7,500 and 10,000 patients per year. Accounting for the seasonal variations in pregnancy rates and a slightly unequal distribution of patients at each clinic, it is foreseeable that over 1,200 women per month could be vying for counseling, appointments, and follow-up visits at some of these facilities." 46 F. Supp. 3d, at 682; cf. App. 238. 7. The suggestion "that these seven or eight providers could meet the demand of the entire state stretches credulity." 46 F. Supp. 3d, at 682; see App. 238. 8. "Between November 1, 2012 and May 1, 2014," that is, before and after enforcement of the admitting-privileges requirement, "the decrease in geographical distribution of abortion facilities" has meant that the number of women of reproductive age living more than 50 miles from a clinic has doubled (from 800,000 to over 1.6 million); those living more than 100 miles has increased by 150% (from 400,000 to 1 million); those living more than 150 miles has increased by more than 350% (from 86,000 to 400,000); and those living more than 200 miles has increased by about 2,800% (from 10,000 to 290,000). After September 2014, should the surgical-center requirement go into effect, the number of women of reproductive age living significant distances from an abortion provider will increase as follows: 2 million women of reproductive age will live more than 50 miles from an abortion provider; 1.3 million will live more than 100 miles from an abortion provider; 900,000 will live more than 150 miles from an abortion provider; and 750,000 more than 200 miles from an abortion provider. 46 F. Supp. 3d, at 681-682; App. 238-242. 9. The "two requirements erect a particularly high barrier for poor, rural, or disadvantaged women." 46 F. Supp. 3d, at 683; cf. App. 363-370. 10. "The great weight of evidence demonstrates that, before the act's passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure." 46 F. Supp. 3d, at 684; see, e.g., App. 257-259, 538; see also id., at 200-202, 253-257. 11. "Abortion, as regulated by the State before the enactment of House Bill 2, has been shown to be much safer, in terms of minor and serious complications, than many common medical procedures not subject to such intense regulation and scrutiny." 46 F. Supp. 3d, at 684; see, e.g., App. 223-224 (describing risks in colonoscopies), 254 (discussing risks in vasectomy and endometrial biopsy, among others), 275-277 (discussing complication rate in plastic surgery). 12. "Additionally, risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities." 46 F. Supp. 3d, at 684; App. 202-206, 257-259. 13. "[W]omen will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility." 46 F. Supp. 3d, at 684; App. 202-206. 14. "[T]here are 433 licensed ambulatory surgical centers in Texas," of which "336 . . . are apparently either 'grandfathered' or enjo[y] the benefit of a waiver of some or all" of the surgical-center "requirements." 46 F. Supp. 3d, at 680-681; App. 184. 15. The "cost of coming into compliance" with the surgical-center requirement "for existing clinics is significant," "undisputedly approach[ing] 1 million dollars," and "most likely exceed[ing] 1.5 million dollars," with "[s]ome . . . clinics" unable to "comply due to physical size limitations of their sites." 46 F. Supp. 3d, at 682. The "cost of acquiring land and constructing a new compliant clinic will likely exceed three million dollars." Ibid. On the basis of these and other related findings, the District Court determined that the surgical-center requirement "imposes an undue burden on the right of women throughout Texas to seek a previability abortion," and that the "admitting-privileges requirement, . . . in conjunction with the ambulatory-surgical-center requirement, imposes an undue burden on the right of women in the Rio Grande Valley, El Paso, and West Texas to seek a previability abortion." Id., at 687. The District Court concluded that the "two provisions" would cause "the closing of almost all abortion clinics in Texas that were operating legally in the fall of 2013," and thereby create a constitutionally "impermissible obstacle as applied to all women seeking a previability abortion" by "restricting access to previously available legal facilities." Id., at 687-688. On August 29, 2014, the court enjoined the enforcement of the two provisions. Ibid.C On October 2, 2014, at Texas' request, the Court of Appeals stayed the District Court's injunction. Whole Woman's Health v. Lakey, 769 F. 3d 285, 305. Within the next two weeks, this Court vacated the Court of Appeals' stay (in substantial part) thereby leaving in effect the District Court's injunction against enforcement of the surgical-center provision and its injunction against enforcement of the admitting-privileges requirement as applied to the McAllen and El Paso clinics. Whole Woman's Health v. Lakey, 574 U. S. ___ (2014). The Court of Appeals then heard Texas' appeal. On June 9, 2015, the Court of Appeals reversed the District Court on the merits. With minor exceptions, it found both provisions constitutional and allowed them to take effect. Whole Women's Health v. Cole, 790 F. 3d 563, 567 (per curiam), modified, 790 F. 3d 598 (CA5 2015). Because the Court of Appeals' decision rests upon alternative grounds and fact-related considerations, we set forth its basic reasoning in some detail. The Court of Appeals concluded:• The District Court was wrong to hold the admitting-privileges requirement unconstitutional because (except for the clinics in McAllen and El Paso) the providers had not asked them to do so, and principles of res judicata barred relief. Id., at 580-583.• Because the providers could have brought their constitutional challenge to the surgical-center provision in their earlier lawsuit, principles of res judicata also barred that claim. Id., at 581-583.• In any event, a state law "regulating previability abortion is constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest." Id., at 572.• "[B]oth the admitting privileges requirement and" the surgical-center requirement "were rationally related to a legitimate state interest," namely, "rais[ing] the standard and quality of care for women seeking abortions and . . . protect[ing] the health and welfare of women seeking abortions." Id., at 584.• The "[p]laintiffs" failed "to proffer competent evidence contradicting the legislature's statement of a legitimate purpose." Id., at 585.• "[T]he district court erred by substituting its own judgment [as to the provisions' effects] for that of the legislature, albeit . . . in the name of the undue burden inquiry." Id., at 587.• Holding the provisions unconstitutional on their face is improper because the plaintiffs had failed to show that either of the provisions "imposes an undue burden on a large fraction of women." Id., at 590.• The District Court erred in finding that, if the surgical-center requirement takes effect, there will be too few abortion providers in Texas to meet the demand. That factual determination was based upon the finding of one of plaintiffs' expert witnesses (Dr. Grossman) that abortion providers in Texas " 'will not be able to go from providing approximately 14,000 abortions annually, as they currently are, to providing the 60,000 to 70,000 abortions that are done each year in Texas once all' " of the clinics failing to meet the surgical-center requirement " 'are forced to close.' " Id., at 589-590. But Dr. Grossman's opinion is (in the Court of Appeals' view) " 'ipse dixit' "; the " 'record lacks any actual evidence regarding the current or future capacity of the eight clinics' "; and there is no "evidence in the record that" the providers that currently meet the surgicalcenter requirement "are operating at full capacity or that they cannot increase capacity." Ibid. For these and related reasons, the Court of Appeals reversed the District Court's holding that the admitting-privileges requirement is unconstitutional and its holding that the surgical-center requirement is unconstitutional. The Court of Appeals upheld in part the District Court's more specific holding that the requirements are unconstitutional as applied to the McAllen facility and Dr. Lynn (a doctor at that facility), but it reversed the District Court's holding that the surgical-center requirement is unconstitutional as applied to the facility in El Paso. In respect to this last claim, the Court of Appeals said that women in El Paso wishing to have an abortion could use abortion providers in nearby New Mexico.II Before turning to the constitutional question, we must consider the Court of Appeals' procedural grounds for holding that (but for the challenge to the provisions of H. B. 2 as applied to McAllen and El Paso) petitioners were barred from bringing their constitutional challenges.AClaim Preclusion — Admitting-Privileges Requirement The Court of Appeals held that there could be no facial challenge to the admitting-privileges requirement. Because several of the petitioners here had previously brought an unsuccessful facial challenge to that requirement (namely, Abbott, 748 F. 3d, at 605; see supra, at 2-3), the Court of Appeals thought that "the principle of res judicata" applied. 790 F. 3d, at 581. The Court of Appeals also held that res judicata prevented the District Court from granting facial relief to petitioners, concluding that it was improper to "facially invalidat[e] the admitting privileges requirement," because to do so would "gran[t] more relief than anyone requested or briefed." Id., at 580. We hold that res judicata neither bars petitioners' challenges to the admitting-privileges requirement nor prevents us from awarding facial relief. For one thing, to the extent that the Court of Appeals concluded that the principle of res judicata bars any facial challenge to the admitting-privileges requirement, see ibid., the court misconstrued petitioners' claims. Petitioners did not bring a facial challenge to the admitting-privileges requirement in this case but instead challenged that requirement as applied to the clinics in McAllen and El Paso. The question is whether res judicata bars petitioners' particular as-applied claims. On this point, the Court of Appeals concluded that res judicata was no bar, see 790 F. 3d, at 592, and we agree. The doctrine of claim preclusion (the here-relevant aspect of res judicata) prohibits "successive litigation of the very same claim" by the same parties. New Hampshire v. Maine, 532 U. S. 742, 748 (2001). Petitioners' postenforcement as-applied challenge is not "the very same claim" as their preenforcement facial challenge. The Restatement of Judgments notes that development of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim. See Restatement (Second) of Judgments §24, Comment f (1980) ("Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first"); cf. id., §20(2) ("A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiff's failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied"); id., §20, Comment k (discussing relationship of this rule with §24, Comment f ). The Courts of Appeals have used similar rules to determine the contours of a new claim for purposes of preclusion. See, e.g., Morgan v. Covington, 648 F. 3d 172, 178 (CA3 2011) ("[R]es judicata does not bar claims that are predicated on events that postdate the filing of the initial complaint"); Ellis v. CCA of Tenn. LLC, 650 F. 3d 640, 652 (CA7 2011); Bank of N. Y. v. First Millennium, Inc., 607 F. 3d 905, 919 (CA2 2010); Smith v. Potter, 513 F. 3d 781, 783 (CA7 2008); Rawe v. Liberty Mut. Fire Ins. Co., 462 F. 3d 521, 529 (CA6 2006); Manning v. Auburn, 953 F. 2d 1355, 1360 (CA11 1992). The Restatement adds that, where "important human values — such as the lawfulness of continuing personal disability or restraint — are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought." §24, Comment f; see Bucklew v. Lombardi, 783 F. 3d 1120, 1127 (CA8 2015) (allowing as-applied challenge to execution method to proceed notwithstanding prior facial challenge). We find this approach persuasive. Imagine a group of prisoners who claim that they are being forced to drink contaminated water. These prisoners file suit against the facility where they are incarcerated. If at first their suit is dismissed because a court does not believe that the harm would be severe enough to be unconstitutional, it would make no sense to prevent the same prisoners from bringing a later suit if time and experience eventually showed that prisoners were dying from contaminated water. Such circumstances would give rise to a new claim that the prisoners' treatment violates the Constitution. Factual developments may show that constitutional harm, which seemed too remote or speculative to afford relief at the time of an earlier suit, was in fact indisputable. In our view, such changed circumstances will give rise to a new constitutional claim. This approach is sensible, and it is consistent with our precedent. See Abie State Bank v. Bryan, 282 U. S. 765, 772 (1931) (where "suit was brought immediately upon the enactment of the law," "decision sustaining the law cannot be regarded as precluding a subsequent suit for the purpose of testing [its] validity . . . in the lights of the later actual experience"); cf. Lawlor v. National Screen Service Corp., 349 U. S. 322, 328 (1955) (judgment that "precludes recovery on claims arising prior to its entry" nonetheless "cannot be given the effect of extinguishing claims which did not even then exist"); United States v. Carolene Products Co., 304 U. S. 144, 153 (1938) ("[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist"); Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415 (1935) ("A statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it is applied" (footnote omitted)); Third Nat. Bank of Louisville v. Stone 174 U. S. 432, 434 (1899) ("A question cannot be held to have been adjudged before an issue on the subject could possibly have arisen"). Justice Alito's dissenting opinion is simply wrong that changed circumstances showing that a challenged law has an unconstitutional effect can never give rise to a new claim. See post, at 14-15 (hereinafter the dissent). Changed circumstances of this kind are why the claim presented in Abbott is not the same claim as petitioners' claim here. The claims in both Abbott and the present case involve "important human values." Restatement (Second) of Judgments §24, Comment f. We are concerned with H. B. 2's "effect . . . on women seeking abortions." Post, at 30 (Alito, J., dissenting). And that effect has changed dramatically since petitioners filed their first lawsuit. Abbott rested on facts and evidence presented to the District Court in October 2013. 748 F. 3d, at 599, n. 14 (declining to "consider any arguments" based on "developments since the conclusion of the bench trial"). Petitioners' claim in this case rests in significant part upon later, concrete factual developments. Those developments matter. The Abbott plaintiffs brought their facial challenge to the admitting-privileges requirement prior to its enforcement — before many abortion clinics had closed and while it was still unclear how many clinics would be affected. Here, petitioners bring an as-applied challenge to the requirement after its enforcement — and after a large number of clinics have in fact closed. The postenforcement consequences of H. B. 2 were unknowable before it went into effect. The Abbott court itself recognized that "[l]ater as-applied challenges can always deal with subsequent, concrete constitutional issues." Id., at 589. And the Court of Appeals in this case properly decided that new evidence presented by petitioners had given rise to a new claim and that petitioners' as-applied challenges are not precluded. See 790 F. 3d, at 591 ("We now know with certainty that the non-[surgical-center] abortion facilities have actually closed and physicians have been unable to obtain admitting privileges after diligent effort"). When individuals claim that a particular statute will produce serious constitutionally relevant adverse consequences before they have occurred — and when the courts doubt their likely occurrence — the factual difference that those adverse consequences have in fact occurred can make all the difference. Compare the Fifth Circuit's opinion in the earlier case, Abbott, supra, at 598 ("All of the major Texas cities . . . continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges"), with the facts found in this case, 46 F. Supp. 3d, at 680 (the two provisions will leave Texas with seven or eight clinics). The challenge brought in this case and the one in Abbott are not the "very same claim," and the doctrine of claim preclusion consequently does not bar a new challenge to the constitutionality of the admitting-privileges requirement. New Hampshire v. Maine, 532 U. S., at 748. That the litigants in Abbott did not seek review in this Court, as the dissent suggests they should have done, see post, at 10, does not prevent them from seeking review of new claims that have arisen after Abbott was decided. In sum, the Restatement, cases from the Courts of Appeals, our own precedent, and simple logic combine to convince us that res judicata does not bar this claim. The Court of Appeals also concluded that the award of facial relief was precluded by principles of res judicata. 790 F. 3d, at 581. The court concluded that the District Court should not have "granted more relief than anyone requested or briefed." Id., at 580. But in addition to asking for as-applied relief, petitioners asked for "such other and further relief as the Court may deem just, proper, and equitable." App. 167. Their evidence and arguments convinced the District Court that the provision was unconstitutional across the board. The Federal Rules of Civil Procedure state that (with an exception not relevant here) a "final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings." Rule 54(c). And we have held that, if the arguments and evidence show that a statutory provision is unconstitutional on its face, an injunction prohibiting its enforcement is "proper." Citizens United v. Federal Election Comm'n, 558 U. S. 310, 333 (2010); see ibid. (in "the exercise of its judicial responsibility" it may be "necessary . . . for the Court to consider the facial validity" of a statute, even though a facial challenge was not brought); cf. Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1339 (2000) ("[O]nce a case is brought, no general categorical line bars a court from making broader pronouncements of invalidity in properly 'as-applied' cases"). Nothing prevents this Court from awarding facial relief as the appropriate remedy for petitioners' as-applied claims.BClaim Preclusion — Surgical-Center Requirement The Court of Appeals also held that claim preclusion barred petitioners from contending that the surgical-center requirement is unconstitutional. 790 F. 3d, at 583. Although it recognized that petitioners did not bring this claim in Abbott, it believed that they should have done so. The court explained that petitioners' constitutional challenge to the surgical-center requirement and the challenge to the admitting-privileges requirement mounted in Abbott"arise from the same 'transactio[n] or series of connected transactions.' . . . The challenges involve the same parties and abortion facilities; the challenges are governed by the same legal standards; the provisions at issue were enacted at the same time as part of the same act; the provisions were motivated by a common purpose; the provisions are administered by the same state officials; and the challenges form a convenient trial unit because they rely on a common nucleus of operative facts." 790 F. 3d, at 581.For all these reasons, the Court of Appeals held petitioners' challenge to H. B. 2's surgical-center requirement was precluded. The Court of Appeals failed, however, to take account of meaningful differences. The surgical-center provision and the admitting-privileges provision are separate, distinct provisions of H. B. 2. They set forth two different, independent requirements with different enforcement dates. This Court has never suggested that challenges to two different statutory provisions that serve two different functions must be brought in a single suit. And lower courts normally treat challenges to distinct regulatory requirements as "separate claims," even when they are part of one overarching "[g]overnment regulatory scheme." 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4408, p. 52 (2d ed. 2002, Supp. 2015); see Hamilton's Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 (CA6 2007). That approach makes sense. The opposite approach adopted by the Court of Appeals would require treating every statutory enactment as a single transaction which a given party would only be able to challenge one time, in one lawsuit, in order to avoid the effects of claim preclusion. Such a rule would encourage a kitchen-sink approach to any litigation challenging the validity of statutes. That outcome is less than optimal — not only for litigants, but for courts. There are other good reasons why petitioners should not have had to bring their challenge to the surgical-center provision at the same time they brought their first suit. The statute gave the Texas Department of State Health Services authority to make rules implementing the surgical-center requirement. H. B. 2, §11(a), App. to Pet. for Cert. 201a. At the time petitioners filed Abbott, that state agency had not yet issued any such rules. Cf. EPA v. Brown, 431 U. S. 99, 104 (1977) (per curiam); 13B Wright, supra, §3532.6, at 629 (3d ed. 2008) (most courts will not "undertake review before rules have been adopted"); Natural Resources Defense Council, Inc. v. EPA, 859 F. 2d 156, 204 (CADC 1988). Further, petitioners might well have expected that those rules when issued would contain provisions grandfathering some then-existing abortion facilities and granting full or partial waivers to others. After all, more than three quarters of non-abortion-related surgical centers had benefited from that kind of provision. See 46 F. Supp. 3d, at 680-681 (336 of 433 existing Texas surgical centers have been grandfathered or otherwise enjoy a waiver of some of the surgical-center requirements); see also App. 299-302, 443-447, 468-469. Finally, the relevant factual circumstances changed between Abbott and the present lawsuit, as we previously described. See supra, at 14-15. The dissent musters only one counterargument. According to the dissent, if statutory provisions "impos[e] the same kind of burden . . . on the same kind of right" and have mutually reinforcing effects, "it is evident that" they are "part of the same transaction" and must be challenged together. Post, at 20, 22. But for the word "evident," the dissent points to no support for this conclusion, and we find it unconvincing. Statutes are often voluminous, with many related, yet distinct, provisions. Plaintiffs, in order to preserve their claims, need not challenge each such provision of, say, the USA PATRIOT Act, the Bipartisan Campaign Reform Act of 2002, the National Labor Relations Act, the Clean Water Act, the Antiterrorism and Effective Death Penalty Act of 1996, or the Patient Protection and Affordable Care Act in their first lawsuit. For all of these reasons, we hold that the petitioners did not have to bring their challenge to the surgical-center provision when they challenged the admitting-privileges provision in Abbott. We accordingly hold that the doctrine of claim preclusion does not prevent them from bringing that challenge now.* * * None of petitioners' claims are barred by res judicata. Five experts in civil procedure argued, in a brief supporting petitioners' request for certiorari, that "the panel's procedural ruling is so clearly incorrect" that there was no reason to decline review. Brief for Professor Michael Dorf et al. as Amici Curiae 22. For all of the reasons described above, we agree that the Court of Appeals' procedural ruling was incorrect. We consequently proceed to consider the merits of petitioners' claims.IIIUndue Burden — Legal Standard We begin with the standard, as described in Casey. We recognize that the "State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient." Roe v. Wade, 410 U. S. 113, 150 (1973). But, we added, "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Casey, 505 U. S., at 877 (plurality opinion). Moreover, "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Id., at 878. The Court of Appeals wrote that a state law is "constitutional if: (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest." 790 F. 3d, at 572. The Court of Appeals went on to hold that "the district court erred by substituting its own judgment for that of the legislature" when it conducted its "undue burden inquiry," in part because "medical uncertainty underlying a statute is for resolution by legislatures, not the courts." Id., at 587 (citing Gonzales v. Carhart, 550 U. S. 124, 163 (2007)). The Court of Appeals' articulation of the relevant standard is incorrect. The first part of the Court of Appeals' test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. See 505 U. S., at 887-898 (opinion of the Court) (performing this balancing with respect to a spousal notification provision); id., at 899-901 (joint opinion of O'Connor, Kennedy, and Souter, JJ.) (same balancing with respect to a parental notification provision). And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955). The Court of Appeals' approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is "undue." The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court's case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings. In Casey, for example, we relied heavily on the District Court's factual findings and the research-based submissions of amici in declaring a portion of the law at issue unconstitutional. 505 U. S., at 888-894 (opinion of the Court) (discussing evidence related to the prevalence of spousal abuse in determining that a spousal notification provision erected an undue burden to abortion access). And, in Gonzales the Court, while pointing out that we must review legislative "factfinding under a deferential standard," added that we must not "place dispositive weight" on those "findings." 550 U. S., at 165. Gonzales went on to point out that the "Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake." Ibid. (emphasis added). Although there we upheld a statute regulating abortion, we did not do so solely on the basis of legislative findings explicitly set forth in the statute, noting that "evidence presented in the District Courts contradicts" some of the legislative findings. Id., at 166. In these circumstances, we said, "[u]ncritical deference to Congress' factual findings . . . is inappropriate." Ibid. Unlike in Gonzales, the relevant statute here does not set forth any legislative findings. Rather, one is left to infer that the legislature sought to further a constitutionally acceptable objective (namely, protecting women's health). Id., at 149-150. For a district court to give significant weight to evidence in the judicial record in these circumstances is consistent with this Court's case law. As we shall describe, the District Court did so here. It did not simply substitute its own judgment for that of the legislature. It considered the evidence in the record — including expert evidence, presented in stipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens. We hold that, in so doing, the District Court applied the correct legal standard.IVUndue Burden — Admitting-Privileges Requirement Turning to the lower courts' evaluation of the evidence, we first consider the admitting-privileges requirement. Before the enactment of H. B. 2, doctors who provided abortions were required to "have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back up for medical complications." Tex. Admin. Code, tit. 25, §139.56 (2009) (emphasis added). The new law changed this requirement by requiring that a "physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced." Tex. Health & Safety Code Ann. §171.0031(a). The District Court held that the legislative change imposed an "undue burden" on a woman's right to have an abortion. We conclude that there is adequate legal and factual support for the District Court's conclusion. The purpose of the admitting-privileges requirement is to help ensure that women have easy access to a hospital should complications arise during an abortion procedure. Brief for Respondents 32-37. But the District Court found that it brought about no such health-related benefit. The court found that "[t]he great weight of evidence demonstrates that, before the act's passage, abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure." 46 F. Supp. 3d, at 684. Thus, there was no significant health-related problem that the new law helped to cure. The evidence upon which the court based this conclusion included, among other things:• A collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications — including those complications requiring hospital admission — was less than one-quarter of 1%. See App. 269-270.• Figures in three peer-reviewed studies showing that the highest complication rate found for the much rarer second trimester abortion was less than one-half of 1% (0.45% or about 1 out of about 200). Id., at 270.• Expert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic. Id., at 266-267 (citing a study of complications occurring within six weeks after 54,911 abortions that had been paid for by the fee-for-service California Medicaid Program finding that the incidence of complications was 2.1%, the incidence of complications requiring hospital admission was 0.23%, and that of the 54,911 abortion patients included in the study, only 15 required immediate transfer to the hospital on the day of the abortion).• Expert testimony stating that "it is extremely unlikely that a patient will experience a serious complication at the clinic that requires emergent hospitalization" and "in the rare case in which [one does], the quality of care that the patient receives is not affected by whether the abortion provider has admitting privileges at the hospital." Id., at 381.• Expert testimony stating that in respect to surgical abortion patients who do suffer complications requiring hospitalization, most of these complications occur in the days after the abortion, not on the spot. See id., at 382; see also id., at 267.• Expert testimony stating that a delay before the onset of complications is also expected for medical abortions, as "abortifacient drugs take time to exert their effects, and thus the abortion itself almost always occurs after the patient has left the abortion facility." Id., at 278.• Some experts added that, if a patient needs a hospital in the day or week following her abortion, she will likely seek medical attention at the hospital nearest her home. See, e.g., id., at 153. We have found nothing in Texas' record evidence that shows that, compared to prior law (which required a "working arrangement" with a doctor with admitting privileges), the new law advanced Texas' legitimate interest in protecting women's health. We add that, when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case. See Tr. of Oral Arg. 47. This answer is consistent with the findings of the other Federal District Courts that have considered the health benefits of other States' similar admitting-privileges laws. See Planned Parenthood of Wis., Inc. v. Van Hollen, 94 F. Supp. 3d 949, 953 (WD Wis. 2015), aff'd sub nom. Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908 (CA7 2015); Planned Parenthood Southeast, Inc. v. Strange, 33 F. Supp. 3d 1330, 1378 (MD Ala. 2014). At the same time, the record evidence indicates that the admitting-privileges requirement places a "substantial obstacle in the path of a woman's choice." Casey, 505 U. S., at 877 (plurality opinion). The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. 46 F. Supp. 3d, at 681. Eight abortion clinics closed in the months leading up to the requirement's effective date. See App. 229-230; cf. Brief for Planned Parenthood Federation of America et al. as Amici Curiae 14 (noting that abortion facilities in Waco, San Angelo, and Midland no longer operate because Planned Parenthood is "unable to find local physicians in those communities with privileges who are willing to provide abortions due to the size of those communities and the hostility that abortion providers face"). Eleven more closed on the day the admitting-privileges requirement took effect. See App. 229-230; Tr. of Oral Arg. 58. Other evidence helps to explain why the new requirement led to the closure of clinics. We read that other evidence in light of a brief filed in this Court by the Society of Hospital Medicine. That brief describes the undisputed general fact that "hospitals often condition admitting privileges on reaching a certain number of admissions per year." Brief for Society of Hospital Medicine et al. as Amici Curiae 11. Returning to the District Court record, we note that, in direct testimony, the president of Nova Health Systems, implicitly relying on this general fact, pointed out that it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because "[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital." App. 730. In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit. Other amicus briefs filed here set forth without dispute other common prerequisites to obtaining admitting privileges that have nothing to do with ability to perform medical procedures. See Brief for Medical Staff Professionals as Amici Curiae 20-25 (listing, for example, requirements that an applicant has treated a high number of patients in the hospital setting in the past year, clinical data requirements, residency requirements, and other discretionary factors); see also Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 16 (ACOG Brief) ("[S]ome academic hospitals will only allow medical staff membership for clinicians who also . . . accept faculty appointments"). Again, returning to the District Court record, we note that Dr. Lynn of the McAllen clinic, a veteran obstetrics and gynecology doctor who estimates that he has delivered over 15,000 babies in his 38 years in practice was unable to get admitting privileges at any of the seven hospitals within 30 miles of his clinic. App. 390-394. He was refused admitting privileges at a nearby hospital for reasons, as the hospital wrote, "not based on clinical competence considerations." Id., at 393-394 (emphasis deleted). The admitting-privileges requirement does not serve any relevant credentialing function. In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas' clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the "number of women of reproductive age living in a county . . . more than 150 miles from a provider increased from approximately 86,000 to 400,000 . . . and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000." 46 F. Supp. 3d, at 681. We recognize that increased driving distances do not always constitute an "undue burden." See Casey, 505 U. S., at 885-887 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court's "undue burden" conclusion. Cf. id., at 895 (opinion of the Court) (finding burden "undue" when requirement places "substantial obstacle to a woman's choice" in "a large fraction of the cases in which" it "is relevant"). The dissent's only argument why these clinic closures, as well as the ones discussed in Part V, infra, may not have imposed an undue burden is this: Although "H. B. 2 caused the closure of some clinics," post, at 26 (emphasis added), other clinics may have closed for other reasons (so we should not "actually count" the burdens resulting from those closures against H. B. 2), post, at 30-31. But petitioners satisfied their burden to present evidence of causation by presenting direct testimony as well as plausible inferences to be drawn from the timing of the clinic closures. App. 182-183, 228-231. The District Court credited that evidence and concluded from it that H. B. 2 in fact led to the clinic closures. 46 F. Supp. 3d, at 680-681. The dissent's speculation that perhaps other evidence, not presented at trial or credited by the District Court, might have shown that some clinics closed for unrelated reasons does not provide sufficient ground to disturb the District Court's factual finding on that issue. In the same breath, the dissent suggests that one benefit of H. B. 2's requirements would be that they might "force unsafe facilities to shut down." Post, at 26. To support that assertion, the dissent points to the Kermit Gosnell scandal. Gosnell, a physician in Pennsylvania, was convicted of first-degree murder and manslaughter. He "staffed his facility with unlicensed and indifferent workers, and then let them practice medicine unsupervised" and had "[d]irty facilities; unsanitary instruments; an absence of functioning monitoring and resuscitation equipment; the use of cheap, but dangerous, drugs; illegal procedures; and inadequate emergency access for when things inevitably went wrong." Report of Grand Jury in No. 0009901-2008 (1st Jud. Dist. Pa., Jan. 14, 2011), p. 24, online at http://www.phila.gov/districtattorney/ pdfs/grandjurywomensmedical.pdf (as last visited June 24, 2016). Gosnell's behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell's deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Id., at 20. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. See infra, at 28 (describing those regulations). The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.VUndue Burden — Surgical-Center Requirement The second challenged provision of Texas' new law sets forth the surgical-center requirement. Prior to enactment of the new requirement, Texas law required abortion facilities to meet a host of health and safety requirements. Under those pre-existing laws, facilities were subject to annual reporting and recordkeeping requirements, see Tex. Admin. Code, tit. 25, §§139.4, 139.5, 139.55, 139.58; a quality assurance program, see §139.8; personnel policies and staffing requirements, see §§139.43, 139.46; physical and environmental requirements, see §139.48; infection control standards, see §139.49; disclosure requirements, see §139.50; patient-rights standards, see §139.51; and medical- and clinical-services standards, see §139.53, including anesthesia standards, see §139.59. These requirements are policed by random and announced inspections, at least annually, see §§139.23, 139.31; Tex. Health & Safety Code Ann. §245.006(a) (West 2010), as well as administrative penalties, injunctions, civil penalties, and criminal penalties for certain violations, see Tex. Admin. Code, tit. 25, §139.33; Tex. Health & Safety Code Ann. §245.011 (criminal penalties for certain reporting violations). H. B. 2 added the requirement that an "abortion facility" meet the "minimum standards . . . for ambulatory surgical centers" under Texas law. §245.010(a) (West Cum. Supp. 2015). The surgical-center regulations include, among other things, detailed specifications relating to the size of the nursing staff, building dimensions, and other building requirements. The nursing staff must comprise at least "an adequate number of [registered nurses] on duty to meet the following minimum staff requirements: director of the department (or designee), and supervisory and staff personnel for each service area to assure the immediate availability of [a registered nurse] for emergency care or for any patient when needed," Tex. Admin. Code, tit. 25, §135.15(a)(3) (2016), as well as "a second individual on duty on the premises who is trained and currently certified in basic cardiac life support until all patients have been discharged from the facility" for facilities that provide moderate sedation, such as most abortion facilities, §135.15(b)(2)(A). Facilities must include a full surgical suite with an operating room that has "a clear floor area of at least 240 square feet" in which "[t]he minimum clear dimension between built-in cabinets, counters, and shelves shall be 14 feet." §135.52(d)(15)(A). There must be a preoperative patient holding room and a postoperative recovery suite. The former "shall be provided and arranged in a one-way traffic pattern so that patients entering from outside the surgical suite can change, gown, and move directly into the restricted corridor of the surgical suite," §135.52(d)(10)(A), and the latter "shall be arranged to provide a one-way traffic pattern from the restricted surgical corridor to the postoperative recovery suite, and then to the extended observation rooms or discharge," §135.52(d)(9)(A). Surgical centers must meet numerous other spatial requirements, see generally §135.52, including specific corridor widths, §135.52(e)(1)(B)(iii). Surgical centers must also have an advanced heating, ventilation, and air conditioning system, §135.52(g)(5), and must satisfy particular piping system and plumbing requirements, §135.52(h). Dozens of other sections list additional requirements that apply to surgical centers. See generally §§135.1-135.56. There is considerable evidence in the record supporting the District Court's findings indicating that the statutory provision requiring all abortion facilities to meet all surgical-center standards does not benefit patients and is not necessary. The District Court found that "risks are not appreciably lowered for patients who undergo abortions at ambulatory surgical centers as compared to nonsurgical-center facilities." 46 F. Supp. 3d, at 684. The court added that women "will not obtain better care or experience more frequent positive outcomes at an ambulatory surgical center as compared to a previously licensed facility." Ibid. And these findings are well supported. The record makes clear that the surgical-center requirement provides no benefit when complications arise in the context of an abortion produced through medication. That is because, in such a case, complications would almost always arise only after the patient has left the facility. See supra, at 23; App. 278. The record also contains evidence indicating that abortions taking place in an abortion facility are safe — indeed, safer than numerous procedures that take place outside hospitals and to which Texas does not apply its surgical-center requirements. See, e.g., id., at 223-224, 254, 275-279. The total number of deaths in Texas from abortions was five in the period from 2001 to 2012, or about one every two years (that is to say, one out of about 120,000 to 144,000 abortions). Id., at 272. Nationwide, childbirth is 14 times more likely than abortion to result in death, ibid., but Texas law allows a midwife to oversee childbirth in the patient's own home. Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. Id., at 276-277; see ACOG Brief 15 (the mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion). Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. App. 254; see ACOG Brief 14 (same). And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions. 46 F. Supp. 3d, at 680-681; see App. 184. These facts indicate that the surgical-center provision imposes "a requirement that simply is not based on differences" between abortion and other surgical procedures "that are reasonably related to" preserving women's health, the asserted "purpos[e] of the Act in which it is found." Doe, 410 U. S., at 194 (quoting Morey v. Doud, 354 U. S. 457, 465 (1957); internal quotation marks omitted). Moreover, many surgical-center requirements are inappropriate as applied to surgical abortions. Requiring scrub facilities; maintaining a one-way traffic pattern through the facility; having ceiling, wall, and floor finishes; separating soiled utility and sterilization rooms; and regulating air pressure, filtration, and humidity control can help reduce infection where doctors conduct procedures that penetrate the skin. App. 304. But abortions typically involve either the administration of medicines or procedures performed through the natural opening of the birth canal, which is itself not sterile. See id., at 302-303. Nor do provisions designed to safeguard heavily sedated patients (unable to help themselves) during fire emergencies, see Tex. Admin. Code, tit. 25, §135.41; App. 304, provide any help to abortion patients, as abortion facilities do not use general anesthesia or deep sedation, id., at 304-305. Further, since the few instances in which serious complications do arise following an abortion almost always require hospitalization, not treatment at a surgical center, id., at 255-256, surgical-center standards will not help in those instances either. The upshot is that this record evidence, along with the absence of any evidence to the contrary, provides ample support for the District Court's conclusion that "[m]any of the building standards mandated by the act and its implementing rules have such a tangential relationship to patient safety in the context of abortion as to be nearly arbitrary." 46 F. Supp. 3d, at 684. That conclusion, along with the supporting evidence, provides sufficient support for the more general conclusion that the surgical-center requirement "will not [provide] better care or . . . more frequent positive outcomes." Ibid. The record evidence thus supports the ultimate legal conclusion that the surgical-center requirement is not necessary. At the same time, the record provides adequate evidentiary support for the District Court's conclusion that the surgical-center requirement places a substantial obstacle in the path of women seeking an abortion. The parties stipulated that the requirement would further reduce the number of abortion facilities available to seven or eight facilities, located in Houston, Austin, San Antonio, and Dallas/Fort Worth. See App. 182-183. In the District Court's view, the proposition that these "seven or eight providers could meet the demand of the entire State stretches credulity." 46 F. Supp. 3d, at 682. We take this statement as a finding that these few facilities could not "meet" that "demand." The Court of Appeals held that this finding was "clearly erroneous." 790 F. 3d, at 590. It wrote that the finding rested upon the " 'ipse dixit' " of one expert, Dr. Grossman, and that there was no evidence that the current surgical centers (i.e., the seven or eight) are operating at full capacity or could not increase capacity. Ibid. Unlike the Court of Appeals, however, we hold that the record provides adequate support for the District Court's finding. For one thing, the record contains charts and oral testimony by Dr. Grossman, who said that, as a result of the surgical-center requirement, the number of abortions that the clinics would have to provide would rise from " '14,000 abortions annually' " to " '60,000 to 70,000' "--an increase by a factor of about five. Id., at 589-590. The District Court credited Dr. Grossman as an expert witness. See 46 F. Supp. 3d, at 678-679, n. 1; id., at 681, n. 4 (finding "indicia of reliability" in Dr. Grossman's conclusions). The Federal Rules of Evidence state that an expert may testify in the "form of an opinion" as long as that opinion rests upon "sufficient facts or data" and "reliable principles and methods." Rule 702. In this case Dr. Grossman's opinion rested upon his participation, along with other university researchers, in research that tracked "the number of open facilities providing abortion care in the state by . . . requesting information from the Texas Department of State Health Services . . . [, t]hrough interviews with clinic staff[,] and review of publicly available information." App. 227. The District Court acted within its legal authority in determining that Dr. Grossman's testimony was admissible. See Fed. Rule Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993) ("[U]nder the Rules the trial judge must ensure that any and all [expert] evidence admitted is not only relevant, but reliable"); 29 C. Wright & V. Gold, Federal Practice and Procedure: Evidence §6266, p. 302 (2016) ("Rule 702 impose[s] on the trial judge additional responsibility to determine whether that [expert] testimony is likely to promote accurate factfinding"). For another thing, common sense suggests that, more often than not, a physical facility that satisfies a certain physical demand will not be able to meet five times that demand without expanding or otherwise incurring significant costs. Suppose that we know only that a certain grocery store serves 200 customers per week, that a certain apartment building provides apartments for 200 families, that a certain train station welcomes 200 trains per day. While it is conceivable that the store, the apartment building, or the train station could just as easily provide for 1,000 customers, families, or trains at no significant additional cost, crowding, or delay, most of us would find this possibility highly improbable. The dissent takes issue with this general, intuitive point by arguing that many places operate below capacity and that in any event, facilities could simply hire additional providers. See post, at 32. We disagree that, according to common sense, medical facilities, well known for their wait times, operate below capacity as a general matter. And the fact that so many facilities were forced to close by the admitting-privileges requirement means that hiring more physicians would not be quite as simple as the dissent suggests. Courts are free to base their findings on commonsense inferences drawn from the evidence. And that is what the District Court did here. The dissent now seeks to discredit Dr. Grossman by pointing out that a preliminary prediction he made in his testimony in Abbott about the effect of the admitting-privileges requirement on capacity was not borne out after that provision went into effect. See post, at 31, n. 22. If every expert who overestimated or underestimated any figure could not be credited, courts would struggle to find expert assistance. Moreover, making a hypothesis — and then attempting to verify that hypothesis with further studies, as Dr. Grossman did — is not irresponsible. It is an essential element of the scientific method. The District Court's decision to credit Dr. Grossman's testimony was sound, particularly given that Texas provided no credible experts to rebut it. See 46 F. Supp. 3d, at 680, n. 3 (declining to credit Texas' expert witnesses, in part because Vincent Rue, a nonphysician consultant for Texas, had exercised "considerable editorial and discretionary control over the contents of the experts' reports"). Texas suggests that the seven or eight remaining clinics could expand sufficiently to provide abortions for the 60,000 to 72,000 Texas women who sought them each year. Because petitioners had satisfied their burden, the obligation was on Texas, if it could, to present evidence rebutting that issue to the District Court. Texas admitted that it presented no such evidence. Tr. of Oral Arg. 46. Instead, Texas argued before this Court that one new clinic now serves 9,000 women annually. Ibid. In addition to being outside the record, that example is not representative. The clinic to which Texas referred apparently cost $26 million to construct — a fact that even more clearly demonstrates that requiring seven or eight clinics to serve five times their usual number of patients does indeed represent an undue burden on abortion access. See Planned Parenthood Debuts New Building: Its $26 Million Center in Houston is Largest of Its Kind in U. S., Houston Chronicle, May 21, 2010, p. B1. Attempting to provide the evidence that Texas did not, the dissent points to an exhibit submitted in Abbott showing that three Texas surgical centers, two in Dallas as well as the $26-million facility in Houston, are each capable of serving an average of 7,000 patients per year. See post, at 33-35. That "average" is misleading. In addition to including the Houston clinic, which does not represent most facilities, it is underinclusive. It ignores the evidence as to the Whole Woman's Health surgical-center facility in San Antonio, the capacity of which is described as "severely limited." The exhibit does nothing to rebut the commonsense inference that the dramatic decline in the number of available facilities will cause a shortfall in capacity should H. B. 2 go into effect. And facilities that were still operating after the effective date of the admitting-privileges provision were not able to accommodate increased demand. See App. 238; Tr. of Oral Arg. 30-31; Brief for National Abortion Federation et al. as Amici Curiae 17-20 (citing clinics' experiences since the admitting-privileges requirement went into effect of 3-week wait times, staff burnout, and waiting rooms so full, patients had to sit on the floor or wait outside). More fundamentally, in the face of no threat to women's health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered. Healthcare facilities and medical professionals are not fungible commodities. Surgical centers attempting to accommodate sudden, vastly increased demand, see 46 F. Supp. 3d, at 682, may find that quality of care declines. Another commonsense inference that the District Court made is that these effects would be harmful to, not supportive of, women's health. See id., at 682-683. Finally, the District Court found that the costs that a currently licensed abortion facility would have to incur to meet the surgical-center requirements were considerable, ranging from $1 million per facility (for facilities with adequate space) to $3 million per facility (where additional land must be purchased). Id., at 682. This evidence supports the conclusion that more surgical centers will not soon fill the gap when licensed facilities are forced to close. We agree with the District Court that the surgical-center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an "undue burden" on their constitutional right to do so.VI We consider three additional arguments that Texas makes and deem none persuasive. First, Texas argues that facial invalidation of both challenged provisions is precluded by H. B. 2's severability clause. See Brief for Respondents 50-52. The severability clause says that "every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provision in this Act, are severable from each other." H. B. 2, §10(b), App. to Pet. for Cert. 200a. It further provides that if "any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected." Ibid. That language, Texas argues, means that facial invalidation of parts of the statute is not an option; instead, it says, the severability clause mandates a more narrowly tailored judicial remedy. But the challenged provisions of H. B. 2 close most of the abortion facilities in Texas and place added stress on those facilities able to remain open. They vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women's health capable of withstanding any meaningful scrutiny. The provisions are unconstitutional on their face: Including a severability provision in the law does not change that conclusion. Severability clauses, it is true, do express the enacting legislature's preference for a narrow judicial remedy. As a general matter, we attempt to honor that preference. But our cases have never required us to proceed application by conceivable application when confronted with a facially unconstitutional statutory provision. "We have held that a severability clause is an aid merely; not an inexorable command." Reno v. American Civil Liberties Union, 521 U. S. 844, 884-885, n. 49 (1997) (internal quotation marks omitted). Indeed, if a severability clause could impose such a requirement on courts, legislatures would easily be able to insulate unconstitutional statutes from most facial review. See ibid. ("It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government" (internal quotation marks omitted)). A severability clause is not grounds for a court to "devise a judicial remedy that ... entail[s] quintessentially legislative work." Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 329 (2006). Such an approach would inflict enormous costs on both courts and litigants, who would be required to proceed in this manner whenever a single application of a law might be valid. We reject Texas' invitation to pave the way for legislatures to immunize their statutes from facial review. Texas similarly argues that instead of finding the entire surgical-center provision unconstitutional, we should invalidate (as applied to abortion clinics) only those specific surgical-center regulations that unduly burden the pro-vision of abortions, while leaving in place other surgical-center regulations (for example, the reader could pick any of the various examples provided by the dissent, see post, at 42-43). See Brief for Respondents 52-53. As we have explained, Texas' attempt to broadly draft a requirement to sever "applications" does not require us to proceed in piecemeal fashion when we have found the statutory provisions at issue facially unconstitutional. Nor is that approach to the regulations even required by H. B. 2 itself. The statute was meant to require abortion facilities to meet the integrated surgical-center standards — not some subset thereof. The severability clause refers to severing applications of words and phrases in the Act, such as the surgical-center requirement as a whole. See H. B. 2, §4, App. to Pet. for Cert. 194a. It does not say that courts should go through the individual components of the different, surgical-center statute, let alone the individual regulations governing surgical centers to see whether those requirements are severable from each other as applied to abortion facilities. Facilities subject to some subset of those regulations do not qualify as surgical centers. And the risk of harm caused by inconsistent application of only a fraction of interconnected regulations counsels against doing so. Second, Texas claims that the provisions at issue here do not impose a substantial obstacle because the women affected by those laws are not a "large fraction" of Texan women "of reproductive age," which Texas reads Casey to have required. See Brief for Respondents 45, 48. But Casey used the language "large fraction" to refer to "a large fraction of cases in which [the provision at issue] is relevant," a class narrower than "all women," "pregnant women," or even "the class of women seeking abortions identified by the State." 505 U. S., at 894-895 (opinion of the Court) (emphasis added). Here, as in Casey, the relevant denominator is "those [women] for whom [the provision] is an actual rather than an irrelevant restriction." Id., at 895. Third, Texas looks for support to Simopoulos v. Virginia, 462 U. S. 506 (1983), a case in which this Court upheld a surgical-center requirement as applied to second-trimester abortions. This case, however, unlike Simopoulos, involves restrictions applicable to all abortions, not simply to those that take place during the second trimester. Most abortions in Texas occur in the first trimester, not the second. App. 236. More importantly, in Casey we discarded the trimester framework, and we now use "viability" as the relevant point at which a State may begin limiting women's access to abortion for reasons unrelated to maternal health. 505 U. S., at 878 (plurality opinion). Because the second trimester includes time that is both previability and postviability, Simopoulos cannot provide clear guidance. Further, the Court in Simopoulos found that the petitioner in that case, unlike petitioners here, had waived any argument that the regulation did not significantly help protect women's health. 462 U. S., at 517.* * * For these reasons the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Ginsburg, J., concurring 579 U. S. ____ (2016)No. 15-274WHOLE WOMAN'S HEALTH, et al., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al.on writ of certiorari to the united states court of appeals for the fifth circuit[June 27, 2016] Justice Ginsburg, concurring. The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Texas argues that H. B. 2's restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, "complications from an abortion are both rare and rarely dangerous." Planned Parenthood of Wis., Inc. v. Schimel, 806 F. 3d 908, 912 (CA7 2015). See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6-10 (collecting studies and concluding "[a]bortion is one of the safest medical procedures performed in the United States"); Brief for Social Science Researchers as Amici Curiae 5-9 (compiling studies that show "[c]omplication rates from abortion are very low"). Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements. See ante, at 31; Planned Parenthood of Wis., 806 F. 3d, at 921-922. See also Brief for Social Science Researchers 9-11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental surgery); Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting-privileges requirements found abortion "is at least as safe as other medical procedures routinely performed in outpatient settings"). Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law "would simply make it more difficult for them to obtain abortions." Planned Parenthood of Wis., 806 F. 3d, at 910. When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17-22. So long as this Court adheres to Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that "do little or nothing for health, but rather strew impediments to abortion," Planned Parenthood of Wis., 806 F. 3d, at 921, cannot survive judicial inspection.Thomas, J., dissenting 579 U. S. ____ (2016)No. 15-274WHOLE WOMAN'S HEALTH, et al., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al.on writ of certiorari to the united states court of appeals for the fifth circuit[June 27, 2016] Justice Thomas, dissenting. Today the Court strikes down two state statutory provisions in all of their applications, at the behest of abortion clinics and doctors. That decision exemplifies the Court's troubling tendency "to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue." Stenberg v. Carhart, 530 U. S. 914, 954 (2000) (Scalia, J., dissenting). As Justice Alito observes, see post (dissenting opinion), today's decision creates an abortion exception to ordinary rules of res judicata, ignores compelling evidence that Texas' law imposes no unconstitutional burden, and disregards basic principles of the severability doctrine. I write separately to emphasize how today's decision perpetuates the Court's habit of applying different rules to different constitutional rights — especially the putative right to abortion. To begin, the very existence of this suit is a jurisprudential oddity. Ordinarily, plaintiffs cannot file suits to vindicate the constitutional rights of others. But the Court employs a different approach to rights that it favors. So in this case and many others, the Court has erroneously allowed doctors and clinics to vicariously vindicate the putative constitutional right of women seeking abortions. This case also underscores the Court's increasingly common practice of invoking a given level of scrutiny — here, the abortion-specific undue burden standard — while applying a different standard of review entirely. What-ever scrutiny the majority applies to Texas' law, it bears little resemblance to the undue-burden test the Court articulated in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and its successors. Instead, the majority eviscerates important features of that test to return to a regime like the one that Casey repudiated. Ultimately, this case shows why the Court never should have bent the rules for favored rights in the first place. Our law is now so riddled with special exceptions for special rights that our decisions deliver neither predict-ability nor the promise of a judiciary bound by the rule of law.I This suit is possible only because the Court has allowed abortion clinics and physicians to invoke a putative constitutional right that does not belong to them — a woman's right to abortion. The Court's third-party standing jurisprudence is no model of clarity. See Kowalski v. Tesmer, 543 U. S. 125, 135 (2004) (Thomas, J., concurring). Driving this doctrinal confusion, the Court has shown a particular willingness to undercut restrictions on third-party standing when the right to abortion is at stake. And this case reveals a deeper flaw in straying from our normal rules: when the wrong party litigates a case, we end up resolving disputes that make for bad law. For most of our Nation's history, plaintiffs could not challenge a statute by asserting someone else's constitutional rights. See ibid. This Court would "not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect and who has therefore no interest in defeating it." Clark v. Kansas City, 176 U. S. 114, 118 (1900) (internal quotation marks omitted). And for good reason: "[C]ourts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." Broadrick v. Oklahoma, 413 U. S. 601, 610-611 (1973). In the 20th century, the Court began relaxing that rule. But even as the Court started to recognize exceptions for certain types of challenges, it stressed the strict limits of those exceptions. A plaintiff could assert a third party's rights, the Court said, but only if the plaintiff had a "close relation to the third party" and the third party faced a formidable "hindrance" to asserting his own rights. Powers v. Ohio, 499 U. S. 400, 411 (1991); accord, Kowalski, supra, at 130-133 (similar). Those limits broke down, however, because the Court has been "quite forgiving" in applying these standards to certain claims. Id., at 130. Some constitutional rights remained "personal rights which . . . may not be vicariously asserted." Alderman v. United States, 394 U. S. 165, 174 (1969) (Fourth Amendment rights are purely per-sonal); see Rakas v. Illinois, 439 U. S. 128, 140, n. 8 (1978) (so is the Fifth Amendment right against self-incrimination). But the Court has abandoned such limitations on other rights, producing serious anomalies across similar factual scenarios. Lawyers cannot vicariously assert potential clients' Sixth Amendment rights because they lack any current, close relationship. Kowalski, supra, at 130-131. Yet litigants can assert potential jurors' rights against race or sex discrimination in jury selection even when the litigants have never met potential jurors and do not share their race or sex. Powers, supra, at 410-416; J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994). And vendors can sue to invalidate state regulations implicating potential customers' equal protection rights against sex discrimination. Craig v. Boren, 429 U. S. 190, 194-197 (1976) (striking down sex-based age restrictions on purchasing beer). Above all, the Court has been especially forgiving of third-party standing criteria for one particular category of cases: those involving the purported substantive due process right of a woman to abort her unborn child. In Singleton v. Wulff, 428 U. S. 106 (1976), a plurality of this Court fashioned a blanket rule allowing third-party standing in abortion cases. Id., at 118. "[I]t generally is appropriate," said the Court, "to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision." Ibid. Yet the plural-ity conceded that the traditional criteria for an exception to the third-party standing rule were not met. There are no "insurmountable" obstacles stopping women seeking abortions from asserting their own rights, the plurality admitted. Nor are there jurisdictional barriers. Roe v. Wade, 410 U. S. 113 (1973), held that women seeking abortions fell into the mootness exception for cases " 'capable of repetition, yet seeking review,' " enabling them to sue after they terminated their pregnancies without showing that they intended to become pregnant and seek an abortion again. Id., at 125. Yet, since Singleton, the Court has unquestioningly accepted doctors' and clinics' vicarious assertion of the constitutional rights of hypothetical patients, even as women seeking abortions have successfully and repeatedly asserted their own rights before this Court.1 Here too, the Court does not question whether doctors and clinics should be allowed to sue on behalf of Texas women seeking abortions as a matter of course. They should not. The central question under the Court's abortion precedents is whether there is an undue burden on a woman's access to abortion. See Casey, 505 U. S., at 877 (plurality opinion); see Part II, infra. But the Court's permissive approach to third-party standing encourages litigation that deprives us of the information needed to resolve that issue. Our precedents encourage abortion providers to sue — and our cases then relieve them of any obligation to prove what burdens women actually face. I find it astonishing that the majority can discover an "undue burden" on women's access to abortion for "those [women] for whom [Texas' law] is an actual rather than an irrelevant restriction," ante, at 39 (internal quotation marks omitted), without identifying how many women fit this description; their proximity to open clinics; or their preferences as to where they obtain abortions, and from whom. "[C]ommonsense inference[s]" that such a burden exists, ante, at 36, are no substitute for actual evidence. There should be no surer sign that our jurisprudence has gone off the rails than this: After creating a constitutional right to abortion because it "involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy," Casey, supra, at 851 (majority opinion), the Court has created special rules that cede its enforcement to others.II Today's opinion also reimagines the undue-burden standard used to assess the constitutionality of abortion restrictions. Nearly 25 years ago, in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, a plurality of this Court invented the "undue burden" standard as a special test for gauging the permissibility of abortion restrictions. Casey held that a law is unconstitutional if it imposes an "undue burden" on a woman's ability to choose to have an abortion, meaning that it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id., at 877. Casey thus instructed courts to look to whether a law substantially impedes women's access to abortion, and whether it is reasonably related to legitimate state interests. As the Court explained, "[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power" to regulate aspects of abortion procedures, "all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales v. Carhart, 550 U. S. 124, 158 (2007). I remain fundamentally opposed to the Court's abortion jurisprudence. E.g., id., at 168-169 (Thomas, J., concurring); Stenberg, 530 U. S., at 980, 982 (Thomas, J., dissenting). Even taking Casey as the baseline, however, the majority radically rewrites the undue-burden test in three ways. First, today's decision requires courts to "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Ante, at 19. Second, today's opinion tells the courts that, when the law's justifications are medically uncertain, they need not defer to the legislature, and must instead assess medical justifications for abortion restrictions by scrutinizing the record themselves. Ibid. Finally, even if a law imposes no "substantial obstacle" to women's access to abortions, the law now must have more than a "reasonabl[e] relat[ion] to . . . a legitimate state interest." Ibid. (internal quotation marks omitted). These precepts are nowhere to be found in Casey or its successors, and transform the undue-burden test to something much more akin to strict scrutiny. First, the majority's free-form balancing test is contrary to Casey. When assessing Pennsylvania's recordkeeping requirements for abortion providers, for instance, Casey did not weigh its benefits and burdens. Rather, Casey held that the law had a legitimate purpose because data collection advances medical research, "so it cannot be said that the requirements serve no purpose other than to make abortions more difficult." 505 U. S., at 901 ( joint opinion of O'Connor, Kennedy, and Souter, JJ.). The opinion then asked whether the recordkeeping requirements imposed a "substantial obstacle," and found none. Ibid. Contrary to the majority's statements, see ante, at 19, Casey did not balance the benefits and burdens of Pennsylvania's spousal and parental notification provisions, either. Pennsylvania's spousal notification requirement, the plurality said, imposed an undue burden because findings established that the requirement would "likely . . . prevent a significant number of women from obtaining an abortion"--not because these burdens outweighed its benefits. 505 U. S., at 893 (majority opinion); see id., at 887-894. And Casey summarily upheld parental notification provisions because even pre-Casey decisions had done so. Id., at 899-900 (joint opinion). Decisions in Casey's wake further refute the majority's benefits-and-burdens balancing test. The Court in Mazurek v. Armstrong, 520 U. S. 968 (1997) (per curiam), had no difficulty upholding a Montana law authorizing only physicians to perform abortions — even though no legislative findings supported the law, and the challengers claimed that "all health evidence contradict[ed] the claim that there is any health basis for the law." Id., at 973 (internal quotation marks omitted). Mazurek also deemed objections to the law's lack of benefits "squarely foreclosed by Casey itself." Ibid. Instead, the Court explained, " 'the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.' " Ibid. (quoting Casey, supra, at 885; emphasis in original); see Gonzales, supra, at 164 (relying on Mazurek). Second, by rejecting the notion that "legislatures, and not courts, must resolve questions of medical uncertainty," ante, at 20, the majority discards another core element of the Casey framework. Before today, this Court had "given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." Gonzales, 550 U. S., at 163. This Court emphasized that this "traditional rule" of deference "is consistent with Casey." Ibid. This Court underscored that legislatures should not be hamstrung "if some part of the medical community were disinclined to follow the proscription." Id., at 166. And this Court concluded that "[c]onsiderations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends." Ibid.; see Stenberg, supra, at 971 (Kennedy, J., dissenting) ("the right of the legislature to resolve matters on which physicians disagreed" is "establish[ed] beyond doubt"). This Court could not have been clearer: When-ever medical justifications for an abortion restriction are debatable, that "provides a sufficient basis to conclude in [a] facial attack that the [law] does not impose an undue burden." Gonzales, 550 U. S., at 164. Otherwise, legislatures would face "too exacting" a standard. Id., at 166. Today, however, the majority refuses to leave disputed medical science to the legislature because past cases "placed considerable weight upon the evidence and argument presented in judicial proceedings." Ante, at 20. But while Casey relied on record evidence to uphold Pennsylvania's spousal-notification requirement, that requirement had nothing to do with debated medical science. 505 U. S., at 888-894 (majority opinion). And while Gonzales observed that courts need not blindly accept all legislative findings, see ante, at 20, that does not help the majority. Gonzales refused to accept Congress' finding of "a medical consensus that the prohibited procedure is never medically necessary" because the procedure's necessity was debated within the medical community. 550 U. S., at 165-166. Having identified medical uncertainty, Gonzales explained how courts should resolve conflicting positions: by respecting the legislature's judgment. See id., at 164. Finally, the majority overrules another central aspect of Casey by requiring laws to have more than a rational basis even if they do not substantially impede access to abortion. Ante, at 19-20. "Where [the State] has a rational basis to act and it does not impose an undue burden," this Court previously held, "the State may use its regulatory power" to impose regulations "in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." Gonzales, supra, at 158 (emphasis added); see Casey, supra, at 878 (plurality opinion) (similar). No longer. Though the majority declines to say how substantial a State's interest must be, ante, at 20, one thing is clear: The State's burden has been ratcheted to a level that has not applied for a quarter century. Today's opinion does resemble Casey in one respect: After disregarding significant aspects of the Court's prior jurisprudence, the majority applies the undue-burden standard in a way that will surely mystify lower courts for years to come. As in Casey, today's opinion "simply . . . highlight[s] certain facts in the record that apparently strike the . . . Justices as particularly significant in establishing (or refuting) the existence of an undue burden." 505 U. S., at 991 (Scalia, J., concurring in judgment in part and dissenting in part); see ante, at 23-24, 31-34. As in Casey, "the opinion then simply announces that the provision either does or does not impose a 'substantial obstacle' or an 'undue burden.' " 505 U. S., at 991 (opinion of Scalia, J); see ante, at 26, 36. And still "[w]e do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been appropriate." 505 U. S., at 991 (opinion of Scalia, J.); cf. ante, at 26, 31-32. All we know is that an undue burden now has little to do with whether the law, in a "real sense, deprive[s] women of the ultimate decision," Casey, supra, at 875, and more to do with the loss of "individualized attention, serious conversation, and emotional support," ante, at 36. The majority's undue-burden test looks far less like our post-Casey precedents and far more like the strict-scrutiny standard that Casey rejected, under which only the most compelling rationales justified restrictions on abortion. See Casey, supra, at 871, 874-875 (plurality opinion). One searches the majority opinion in vain for any acknowledgment of the "premise central" to Casey's rejection of strict scrutiny: "that the government has a legitimate and substantial interest in preserving and promoting fetal life" from conception, not just in regulating medical procedures. Gonzales, supra, at 145 (internal quotation marks omitted); see Casey, supra, at 846 (majority opinion), 871 (plurality opinion). Meanwhile, the majority's undue-burden balancing approach risks ruling out even minor, previously valid infringements on access to abortion. Moreover, by second-guessing medical evidence and making its own assessments of "quality of care" issues, ante, at 23-24, 30-31, 36, the majority reappoints this Court as "the country's ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States." Gonzales, supra, at 164 (internal quotation marks omitted). And the majority seriously burdens States, which must guess at how much more compelling their interests must be to pass muster and what "commonsense inferences" of an undue burden this Court will identify next.III The majority's furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court's tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right — be it "rational basis," intermediate, strict, or something else — is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. Though the tiers of scrutiny have become a ubiquitous feature of constitutional law, they are of recent vintage. Only in the 1960's did the Court begin in earnest to speak of "strict scrutiny" versus reviewing legislation for mere rationality, and to develop the contours of these tests. See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1274, 1284-1285 (2007). In short order, the Court adopted strict scrutiny as the standard for reviewing everything from race-based classifications under the Equal Protection Clause to restrictions on constitutionally protected speech. Id., at 1275-1283. Roe v. Wade, 410 U. S. 113, then applied strict scrutiny to a purportedly "fundamental" substantive due process right for the first time. Id., at 162-164; see Fallon, supra, at 1283; accord, Casey, supra, at 871 (plurality opinion) (noting that post-Roe cases interpreted Roe to demand "strict scrutiny"). Then the tiers of scrutiny proliferated into ever more gradations. See, e.g., Craig, 429 U. S., at 197-198 (intermediate scrutiny for sex-based classifications); Lawrence v. Texas, 539 U. S. 558, 580 (2003) (O'Connor, J., concurring in judgment) ("a more searching form of rational basis review" applies to laws reflecting "a desire to harm a politically unpopular group"); Buckley v. Valeo, 424 U. S. 1, 25 (1976) (per cu-riam) (applying " 'closest scrutiny' " to campaign-finance contribution limits). Casey's undue-burden test added yet another right-specific test on the spectrum between rational-basis and strict-scrutiny review. The illegitimacy of using "made-up tests" to "displace longstanding national traditions as the primary determinant of what the Constitution means" has long been apparent. United States v. Virginia, 518 U. S. 515, 570 (1996) (Scalia, J., dissenting). The Constitution does not prescribe tiers of scrutiny. The three basic tiers--"rational basis," intermediate, and strict scrutiny--"are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case." Id., at 567; see also Craig, supra, at 217-221 (Rehnquist, J., dissenting). But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. All the State apparently needs to show to survive strict scrutiny is a list of aspirational educational goals (such as the "cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry") and a "reasoned, principled explanation" for why it is pursuing them — then this Court defers. Fisher v. University of Tex. at Austin, ante, at 7, 12 (internal quotation marks omitted). Yet the same State gets no deference under the undue-burden test, despite producing evidence that abortion safety, one rationale for Texas' law, is medically debated. See Whole Woman's Health v. Lakey, 46 F. Supp. 3d 673, 684 (WD Tex. 2014) (noting conflict in expert testimony about abortion safety). Likewise, it is now easier for the government to restrict judicial candidates' campaign speech than for the Government to define marriage — even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. Compare Williams-Yulee v. Florida Bar, 575 U. S. ___, ___-___ (2015) (slip op., at 8-9), with United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 20). These more recent decisions reflect the Court's tendency to relax purportedly higher standards of review for less-preferred rights. E.g., Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 421 (2000) (Thomas, J., dissenting) ("The Court makes no effort to justify its deviation from the tests we traditionally employ in free speech cases" to review caps on political contributions). Meanwhile, the Court selectively applies rational-basis review — under which the question is supposed to be whether "any state of facts reasonably may be conceived to justify" the law, McGowan v. Maryland, 366 U. S. 420, 426 (1961)--with formidable toughness. E.g., Lawrence, 539 U. S., at 580 (O'Connor, J., concurring in judgment) (at least in equal protection cases, the Court is "most likely" to find no rational basis for a law if "the challenged legislation inhibits personal relationships"); see id., at 586 (Scalia, J., dissenting) (faulting the Court for applying "an unheard-of form of rational-basis review"). These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its "doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied." Williams-Yulee, supra, at ___ (slip op., at 1) (Breyer, J., concurring). The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case.IV It is tempting to identify the Court's invention of a constitutional right to abortion in Roe v. Wade, 410 U. S. 113, as the tipping point that transformed third-party standing doctrine and the tiers of scrutiny into an unworkable morass of special exceptions and arbitrary applications. But those roots run deeper, to the very notion that some constitutional rights demand preferential treatment. During the Lochner era, the Court considered the right to contract and other economic liberties to be fundamental requirements of due process of law. See Lochner v. New York, 198 U. S. 45 (1905). The Court in 1937 repudiated Lochner's foundations. See West Coast Hotel Co. v. Parrish, 300 U. S. 379, 386-387, 400 (1937). But the Court then created a new taxonomy of preferred rights. In 1938, seven Justices heard a constitutional challenge to a federal ban on shipping adulterated milk in interstate commerce. Without economic substantive due process, the ban clearly invaded no constitutional right. See United States v. Carolene Products Co., 304 U. S. 144, 152-153 (1938). Within Justice Stone's opinion for the Court, however, was a footnote that just three other Justices joined — the famous Carolene Products Footnote 4. See ibid., n. 4; Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093, 1097 (1982). The footnote's first paragraph suggested that the presumption of constitutionality that ordinarily attaches to legislation might be "narrower . . . when legislation appears on its face to be within a specific prohibition of the Constitution." 304 U. S., at 152-153, n. 4. Its second paragraph appeared to question "whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation." Ibid. And its third and most familiar paragraph raised the question "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Ibid. Though the footnote was pure dicta, the Court seized upon it to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race — but also rights not enumerated in the Constitution.2 As the Court identified which rights deserved special protection, it developed the tiers of scrutiny as part of its equal protection (and, later, due process) jurisprudence as a way to demand extra justifications for encroachments on these rights. See Fallon, 54 UCLA L. Rev., at 1270-1273, 1281-1285. And, having created a new category of fundamental rights, the Court loosened the reins to recognize even putative rights like abortion, see Roe, 410 U. S., at 162-164, which hardly implicate "discrete and insular minorities." The Court also seized upon the rationale of the Carolene Products footnote to justify exceptions to third-party standing doctrine. The Court suggested that it was tilting the analysis to favor rights involving actual or perceived minorities — then seemingly counted the right to contraception as such a right. According to the Court, what matters is the "relationship between one who acted to protect the rights of a minority and the minority itself"--which, the Court suggested, includes the relationship "between an advocate of the rights of persons to obtain contraceptives and those desirous of doing so." Eisenstadt v. Baird, 405 U. S. 438, 445 (1972) (citing Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L. J. 599, 631 (1962)). Eighty years on, the Court has come full circle. The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not — and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitu-tional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.* * * Today's decision will prompt some to claim victory, just as it will stiffen opponents' will to object. But the entire Nation has lost something essential. The majority's embrace of a jurisprudence of rights-specific exceptions and balancing tests is "a regrettable concession of defeat — an acknowledgement that we have passed the point where 'law,' properly speaking, has any further application." Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989). I respectfully dissent.Alito, J., dissenting 579 U. S. ____ (2016)No. 15-274WHOLE WOMAN'S HEALTH, et al., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, et al.on writ of certiorari to the united states court of appeals for the fifth circuit[June 27, 2016] Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting. The constitutionality of laws regulating abortion is one of the most controversial issues in American law, but this case does not require us to delve into that contentious dispute. Instead, the dispositive issue here concerns a workaday question that can arise in any case no matter the subject, namely, whether the present case is barred by res judicata. As a court of law, we have an obligation to apply such rules in a neutral fashion in all cases, regardless of the subject of the suit. If anything, when a case involves a controversial issue, we should be especially careful to be scrupulously neutral in applying such rules. The Court has not done so here. On the contrary, determined to strike down two provisions of a new Texas abortion statute in all of their applications, the Court simply disregards basic rules that apply in all other cases. Here is the worst example. Shortly after Texas enacted House Bill 2 (H. B. 2) in 2013, the petitioners in this case brought suit, claiming, among other things, that a provision of the new law requiring a physician performing an abortion to have admitting privileges at a nearby hospital is "facially" unconstitutional and thus totally unenforceable. Petitioners had a fair opportunity to make their case, but they lost on the merits in the United States Court of Appeals for the Fifth Circuit, and they chose not to petition this Court for review. The judgment against them became final. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891 (WD Tex. 2013), aff'd in part and rev'd in part, 748 F. 3d 583 (CA5 2014) (Abbott). Under the rules that apply in regular cases, petitioners could not relitigate the exact same claim in a second suit. As we have said, "a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise." Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 107 (1991). In this abortion case, however, that rule is disregarded. The Court awards a victory to petitioners on the very claim that they unsuccessfully pressed in the earlier case. The Court does this even though petitioners, undoubtedly realizing that a rematch would not be allowed, did not presume to include such a claim in their complaint. The Court favors petitioners with a victory that they did not have the audacity to seek. Here is one more example: the Court's treatment of H. B. 2's "severability clause." When part of a statute is held to be unconstitutional, the question arises whether other parts of the statute must also go. If a statute says that provisions found to be unconstitutional can be severed from the rest of the statute, the valid provisions are allowed to stand. H. B. 2 contains what must surely be the most emphatic severability clause ever written. This clause says that every single word of the statute and every possible application of its provisions is severable. But despite this language, the Court holds that no part of the challenged provisions and no application of any part of them can be saved. Provisions that are indisputably constitutional — for example, provisions that require facilities performing abortions to follow basic fire safety measures — are stricken from the books. There is no possible justification for this collateral damage. The Court's patent refusal to apply well-established law in a neutral way is indefensible and will undermine public confidence in the Court as a fair and neutral arbiter.I Res judicata — or, to use the more modern terminology, "claim preclusion"--is a bedrock principle of our legal system. As we said many years ago, "[p]ublic policy dictates that there be an end of litigation[,] that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as between the parties." Baldwin v. Iowa State Traveling Men's Assn., 283 U. S. 522, 525 (1931). This doctrine "is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. . . . To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana v. United States, 440 U. S. 147, 153-154 (1979). These are "vital public interests" that should be " 'cordially regarded and enforced.' " Federated Department Stores, Inc. v. Moitie, 452 U. S. 394, 401 (1981). The basic rule of preclusion is well known and has been frequently stated in our opinions. Litigation of a "cause of action" or "claim" is barred if (1) the same (or a closely related) party (2) brought a prior suit asserting the same cause of action or claim, (3) the prior case was adjudicated by a court of competent jurisdiction and (4) was decided on the merits, (5) a final judgment was entered, and (6) there is no ground, such as fraud, to invalidate the prior judgment. See Montana, supra, at 153; Commissioner v. Sunnen, 333 U. S. 591, 597 (1948); Cromwell v. County of Sac, 94 U. S. 351, 352-353 (1877).A I turn first to the application of this rule to petitioners' claim that H. B. 2's admitting privileges requirement is facially unconstitutional. Here, all the elements set out above are easily satisfied based on Abbott, the 2013 case to which I previously referred. That case (1) was brought by a group of plaintiffs that included petitioners in the present case, (2) asserted the same cause of action or claim, namely, a facial challenge to the constitutionality of H. B. 2's admitting privileges requirement, (3) was adjudicated by courts of competent jurisdiction, (4) was decided on the merits, (5) resulted in the entry of a final judgment against petitioners, and (6) was not otherwise subject to invalidation. All of this is clear, and that is undoubtedly why petitioners' attorneys did not even include a facial attack on the admitting privileges requirement in their complaint in this case. To have done so would have risked sanctions for misconduct. See Robinson v. National Cash Register Co., 808 F. 2d 1119, 1131 (CA5 1987) (a party's "persistence in litigating [a claim] when res judicata clearly barred the suit violated rule 11"); McLaughlin v. Bradlee, 602 F. Supp. 1412, 1417 (DC 1985) ("It is especially appropriate to impose sanctions in situations where the doctrines of res judicata and collateral estoppel plainly preclude relitigation of the suit"). Of the elements set out above, the Court disputes only one. The Court concludes that petitioners' prior facial attack on the admitting privileges requirement and their current facial attack on that same requirement are somehow not the same cause of action or claim. But that conclusion is unsupported by authority and plainly wrong.B Although the scope of a cause of action or claim for purposes of res judicata is hardly a new question, courts and scholars have struggled to settle upon a definition.1 But the outcome of the present case does not depend upon the selection of the proper definition from among those adopted or recommended over the years because the majority's holding is not supported by any of them. In Baltimore S. S. Co. v. Phillips, 274 U. S. 316 (1927), we defined a cause of action as an "actionable wrong." Id., at 321; see also ibid. ("A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show"). On this understanding, the two claims at issue here are indisputably the same. The same result is dictated by the rule recommended by the American Law Institute (ALI) in the first Restatement of Judgments, issued in 1942. Section 61 of the first Restatement explains when a claim asserted by a plaintiff in a second suit is the same for preclusion purposes as a claim that the plaintiff unsuccessfully litigated in a prior case. Under that provision, "the plaintiff is precluded from subsequently maintaining a second action based upon the same transaction, if the evidence needed to sustain the second action would have sustained the first action." Restatement of Judgments §61. There is no doubt that this rule is satisfied here. The second Restatement of Judgments, issued by the ALI in 1982, adopted a new approach for determining the scope of a cause of action or claim. In Nevada v. United States, 463 U. S. 110 (1983), we noted that the two Restatements differ in this regard, but we had no need to determine which was correct. Id., at 130-131, and n. 12. Here, the majority simply assumes that we should follow the second Restatement even though that Restatement — on the Court's reading, at least — leads to a conclusion that differs from the conclusion clearly dictated by the first Restatement. If the second Restatement actually supported the majority's holding, the Court would surely be obligated to explain why it chose to follow the second Restatement's approach. But here, as in Nevada, supra, at 130-131, application of the rule set out in the second Restatement does not change the result. While the Court relies almost entirely on a comment to one section of the second Restatement, the Court ignores the fact that a straightforward application of the provisions of that Restatement leads to the conclusion that petitioners' two facial challenges to the admitting privileges requirement constitute a single claim. Section 19 of the second Restatement sets out the general claim-preclusion rule that applies in a case like the one before us: "A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim." Section 24(1) then explains the scope of the "claim" that is extinguished: It "includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." Section 24's Comment b, in turn, fleshes out the key term "transaction," which it defines as "a natural grouping or common nucleus of operative facts." Whether a collection of events constitutes a single transaction is said to depend on "their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes." Ibid. Both the claim asserted in petitioners' first suit and the claim now revived by the Court involve the same "nucleus of operative facts." Indeed, they involve the very same "operative facts," namely, the enactment of the admitting privileges requirement, which, according to the theory underlying petitioners' facial claims, would inevitably have the effect of causing abortion clinics to close. This is what petitioners needed to show — and what they attempted to show in their first facial attack: not that the admitting privileges requirement had already imposed a substantial burden on the right of Texas women to obtain abortions, but only that it would have that effect once clinics were able to assess whether they could practicably comply. The Court's decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), makes that clear. Casey held that Pennsylvania's spousal notification requirement was facially unconstitutional even though that provision had been enjoined prior to enforcement. See id., at 845. And the Court struck down the provision because it "will impose a substantial obstacle." Id., at 893-894 (emphasis added). See also id., at 893 ("The spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion" (emphasis added)); id., at 894 (Women "are likely to be deterred from procuring an abortion" (emphasis added)). Consistent with this understanding, what petitioners tried to show in their first case was that the admitting privileges requirement would cause clinics to close. They claimed that their evidence showed that "at least one-third of the State's licensed providers would stop providing abortions once the privileges requirement took effect."2 Agreeing with petitioners, the District Court enjoined enforcement of the requirement on the ground that "there will be abortion clinics that will close." Abbott, 951 F. Supp. 2d, at 900 (emphasis added). The Fifth Circuit found that petitioners' evidence of likely effect was insufficient, stating that petitioners failed to prove that "any woman will lack reasonable access to a clinic within Texas." Abbott, 748 F. 3d, at 598 (some emphasis added; some emphasis deleted). The correctness of that holding is irrelevant for present purposes. What matters is that the "operative fact" in the prior case was the enactment of the admitting privileges requirement, and that is precisely the same operative fact underlying petitioners' facial attack in the case now before us.3C In light of this body of authority, how can the Court maintain that the first and second facial claims are really two different claims? The Court's first argument is that petitioners did not bring two facial claims because their complaint in the present case sought only as-applied relief and it was the District Court, not petitioners, who injected the issue of facial relief into the case. Ante, at 11. (After the District Court gave them statewide relief, petitioners happily accepted the gift and now present their challenge as a facial one. See Reply Brief 24-25 ("[F]acial invalidation is the only way to ensure that the Texas requirements do not extinguish women's liberty").) The thrust of the Court's argument is that a trial judge can circumvent the rules of claim preclusion by granting a plaintiff relief on a claim that the plaintiff is barred from relitigating. Not surprisingly, the Court musters no authority for this proposition, which would undermine the interests that the doctrine of claim preclusion is designed to serve. A "fundamental precept of common-law adjudication is that an issue once determined by a competent court is conclusive." Arizona v. California, 460 U. S. 605, 619 (1983). This interest in finality is equally offended regardless of whether the precluded claim is included in a complaint or inserted into the case by a judge.4 Another argument tossed off by the Court is that the judgment on the admitting privileges claim in the first case does not have preclusive effect because it was based on " 'the prematurity of the action.' " See ante, at 11-12 (quoting Restatement (Second) of Judgments §20(2)). But this argument grossly mischaracterizes the basis for the judgment in the first case. The Court of Appeals did not hold that the facial challenge was premature. It held that the evidence petitioners offered was insufficient. See Abbott, 748 F. 3d, at 598-599; see also n. 9, infra. Petitioners could have sought review in this Court, but elected not to do so. This brings me to the Court's main argument — that the second facial challenge is a different claim because of "changed circumstances." What the Court means by this is that petitioners now have better evidence than they did at the time of the first case with respect to the number of clinics that would have to close as a result of the admitting privileges requirement. This argument is contrary to a cardinal rule of res judicata, namely, that a plaintiff who loses in a first case cannot later bring the same case simply because it has now gathered better evidence. Claim preclusion does not contain a "better evidence" exception. See, e.g., Torres v. Shalala, 48 F. 3d 887, 894 (CA5 1995) ("If simply submitting new evidence rendered a prior decision factually distinct, res judicata would cease to exist"); Geiger v. Foley Hoag LLP Retirement Plan, 521 F. 3d 60, 66 (CA1 2008) (Claim preclusion "applies even if the litigant is prepared to present different evidence . . . in the second action"); Saylor v. United States, 315 F. 3d 664, 668 (CA6 2003) ("The fact that . . . new evidence might change the outcome of the case does not affect application of claim preclusion doctrine"); International Union of Operating Engineers-Employers Constr. Industry Pension, Welfare and Training Trust Funds v. Karr, 994 F. 2d 1426, 1430 (CA9 1993) ("The fact that some different evidence may be presented in this action . . . , however, does not defeat the bar of res judicata"); Restatement (Second) of Judgments §25, Comment b ("A mere shift in the evidence offered to support a ground held unproved in a prior action will not suffice to make a new claim avoiding the preclusive effect of the judgment"); 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4403, p. 33 (2d ed. 2002) (Wright & Miller) (Res judicata "ordinarily applies despite the availability of new evidence"); Restatement of Judgments §1, Comment b (The ordinary rules of claim preclusion apply "although the party against whom a judgment is rendered is later in a position to produce better evidence so that he would be successful in a second action"). In an effort to get around this hornbook rule, the Court cites a potpourri of our decisions that have no bearing on the question at issue. Some are not even about res judicata.5 And the cases that do concern res judicata, Abie State Bank v. Bryan, 282 U. S. 765, 772 (1931), Lawlor v. National Screen Service Corp., 349 U. S. 322, 328 (1955), and Third Nat. Bank of Louisville v. Stone, 174 U. S. 432, 434 (1899), endorse the unremarkable proposition that a prior judgment does not preclude new claims based on acts occurring after the time of the first judgment.6 But petitioners' second facial challenge is not based on new acts postdating the first suit. Rather, it is based on the same underlying act, the enactment of H. B. 2, which allegedly posed an undue burden. I come now to the authority on which the Court chiefly relies, Comment f to §24 of the second Restatement. This is how it reads:"Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first. See Illustrations 10-12. Where important human values — such as the lawfulness of a continuing personal disability or restraint — are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought." (Emphasis added.) As the word I have highlighted--"may"--should make clear, this comment does not say that "[m]aterial operative facts occurring after the decision of an action" always or even usually form "the basis of a second action not precluded by the first." Rather, the comment takes the view that this "may" be so. Accord, ante, at 11 ("[D]evelopment of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim" (emphasis added)). The question, then, is when the development of new material facts should lead to this conclusion. And there are strong reasons to conclude this should be a very narrow exception indeed. Otherwise, this statement, relegated to a mere comment, would revolutionize the rules of claim preclusion — by permitting a party to relitigate a lost claim whenever it obtains better evidence. Comment f was surely not meant to upend this fundamental rule. What the comment undoubtedly means is far more modest — only that in a few, limited circumstances the development of new material facts should (in the opinion of the ALI) permit relitigation. What are these circumstances? Section 24 includes three illustrative examples in the form of hypothetical cases, and none resembles the present case. In the first hypothetical case, the subsequent suit is based on new events that provide a basis for relief under a different legal theory. Restatement (Second) of Judgments §24, Illustration 10. In the second case, a father who lost a prior child custody case brings a second action challenging his wife's fitness as a mother based on "subsequent experience," which I take to mean subsequent conduct by the mother. Id., Illustration 11. This illustration is expressly linked to a determination of a person's "status"--and not even status in general, but a particular status, fitness as a parent, that the law recognizes as changeable. See Reporter's Note, id., §24, Comment f (Illustration 11 "exemplifies the effect of changed circumstances in an action relating to status"). In the final example, the government loses a civil antitrust conspiracy case but then brings a second civil antitrust conspiracy case based on new conspiratorial acts. The illustration does not suggest that the legality of acts predating the end of the first case is actionable in the second case, only that the subsequent acts give rise to a new claim and that proof of earlier acts may be admitted as evidence to explain the significance of the later acts. Id., Illustration 12. The present claim is not similar to any of these illustrations. It does not involve a claim based on postjudgment acts and a new legal theory. It does not ask us to adjudicate a person's status. And it does not involve a continuing course of conduct to be proved by the State's new acts. The final illustration actually undermines the Court's holding. The Reporter's Note links this illustration to a Fifth Circuit case, Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 421 F. 2d 1313 (1970). In that case, the court distinguished between truly postjudgment acts and "acts which have been completed [prior to the previous judgment] except for their consequences." Id., at 1318. Only postjudgment acts — and not postjudgment consequences — the Fifth Circuit held, can give rise to a new cause of action. See ibid.7 Here, the Court does not rely on any new acts performed by the State of Texas after the end of the first case. Instead, the Court relies solely on what it takes to be new consequences, the closing of additional clinics, that are said to have resulted from the enactment of H. B. 2. D For these reasons, what the Court has done here is to create an entirely new exception to the rule that a losing plaintiff cannot relitigate a claim just because it now has new and better evidence. As best I can tell, the Court's new rule must be something like this: If a plaintiff initially loses because it failed to provide adequate proof that a challenged law will have an unconstitutional effect and if subsequent developments tend to show that the law will in fact have those effects, the plaintiff may relitigate the same claim. Such a rule would be unprecedented, and I am unsure of its wisdom, but I am certain of this: There is no possible justification for such a rule unless the plaintiff, at the time of the first case, could not have reasonably shown what the effects of the law would be. And that is not the situation in this case.1 The Court does not contend that petitioners, at the time of the first case, could not have gathered and provided evidence that was sufficient to show that the admitting privileges requirement would cause a sufficient number of clinic closures. Instead, the Court attempts to argue that petitioners could not have shown at that time that a sufficient number of clinics had already closed. As I have explained, that is not what petitioners need to show or what they attempted to prove. Moreover, the Court is also wrong in its understanding of petitioners' proof in the first case. In support of its holding that the admitting privileges requirement now "places a 'substantial obstacle in the path of a woman's choice,' " the Court relies on two facts: "Eight abortion clinics closed in the months leading up to the requirement's effective date" and "[e]leven more closed on the day the admitting-privileges requirement took effect." Ante, at 24. But petitioners put on evidence addressing exactly this issue in their first trial. They apparently surveyed 27 of the 36 abortion clinics they identified in the State, including all 24 of the clinics owned by them or their coplaintiffs, to find out what impact the requirement would have on clinic operations. See Appendix, infra (App. K to Emergency Application To Vacate Stay in Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, O. T. 2013, No. 13A452, Plaintiffs' Trial Exh. 46). That survey claimed to show that the admitting privileges requirement would cause 15 clinics to close.8 See ibid. The Fifth Circuit had that evidence before it, and did not refuse to consider it.9 If that evidence was sufficient to show that the admitting privileges rule created an unlawful impediment to abortion access (and the District Court indeed thought it sufficient), then the decision of the Fifth Circuit in the first case was wrong as a matter of law. Petitioners could have asked us to review that decision, but they chose not to do so. A tactical decision of that nature has consequences. While it does not mean that the admitting privileges requirement is immune to a facial challenge, it does mean that these petitioners and the other plaintiffs in the first case cannot mount such a claim.2 Even if the Court thinks that petitioners' evidence in the first case was insufficient, the Court does not claim that petitioners, with reasonable effort, could not have gathered sufficient evidence to show with some degree of accuracy what the effects of the admitting privileges requirement would be. As I have just explained, in their first trial petitioners introduced a survey of 27 abortion clinics indicating that 15 would close because of the admitting privileges requirement. The Court does not identify what additional evidence petitioners needed but were unable to gather. There is simply no reason why petitioners should be allowed to relitigate their facial claim.E So far, I have discussed only the first of the two sentences in Comment f, but the Court also relies on the second sentence. I reiterate what that second sentence says:"Where important human values — such as the lawfulness of a continuing personal disability or restraint — are at stake, even a slight change of circumstances may afford a sufficient basis for concluding that a second action may be brought." Restatement (Second) of Judgments §24, Comment f. The second Restatement offers no judicial support whatsoever for this suggestion, and thus the comment "must be regarded as a proposal for change rather than a restatement of existing doctrine, since the commentary refers to not a single case, of this or any other United States court." United States v. Stuart, 489 U. S. 353, 375 (1989) (Scalia, J., concurring in judgment). The sentence also sits in considerable tension with our decisions stating that res judicata must be applied uniformly and without regard to what a court may think is just in a particular case. See, e.g., Moitie, 452 U. S., at 401 ("The doctrine of res judicata serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case"). Not only did this sentence seemingly come out of nowhere, but it appears that no subsequent court has relied on this sentence as a ground for decision. And while a few decisions have cited the "important human values" language, those cases invariably involve the relitigation of personal status determinations, as discussed in Comment f's Illustration 11. See, e.g., People ex rel. Leonard HH. v. Nixon, 148 App. Div. 2d 75, 79-80, 543 N. Y. S. 2d 998, 1001 (1989) ("[B]y its very nature, litigation concerning the status of a person's mental capacity does not lend itself to strict application of res judicata on a transactional analysis basis").10* * * In sum, the Court's holding that petitioners' second facial challenge to the admitting privileges requirement is not barred by claim preclusion is not supported by any of our cases or any body of lower court precedent; is contrary to the bedrock rule that a party cannot relitigate a claim simply because the party has obtained new and better evidence; is contrary to the first Restatement of Judgments and the actual rules of the second Restatement of Judgment; and is purportedly based largely on a single comment in the second Restatement, but does not even represent a sensible reading of that comment. In a regular case, an attempt by petitioners to relitigate their previously unsuccessful facial challenge to the admitting privileges requirement would have been rejected out of hand — indeed, might have resulted in the imposition of sanctions under Federal Rule of Civil Procedure 11. No court would even think of reviving such a claim on its own. But in this abortion case, ordinary rules of law — and fairness — are suspended.IIA I now turn to the application of principles of claim preclusion to a claim that petitioners did include in their second complaint, namely, their facial challenge to the requirement in H. B. 2 that abortion clinics comply with the rules that govern ambulatory surgical centers (ASCs). As we have said many times, the doctrine of claim preclusion not only bars the relitigation of previously litigated claims; it can also bar claims that are closely related to the claims unsuccessfully litigated in a prior case. See Moitie, supra, at 398; Montana, 440 U. S., at 153. As just discussed, the Court's holding on the admitting privileges issue is based largely on a comment to §24 of the second Restatement, and therefore one might think that consistency would dictate an examination of what §24 has to say on the question whether the ASC challenge should be barred. But consistency is not the Court's watchword here. Section 24 sets out the general rule regarding the " '[s]plitting' " of claims. This is the rule that determines when the barring of a claim that was previously litigated unsuccessfully also extinguishes a claim that the plaintiff could have but did not bring in the first case. Section 24(1) states that the new claim is barred if it is "any part of the transaction, or series of connected transactions, out of which the action arose." Here, it is evident that petitioners' challenges to the admitting privileges requirement and the ASC requirement are part of the same transaction or series of connected transactions. If, as I believe, the "transaction" is the enactment of H. B. 2, then the two facial claims are part of the very same transaction. And the same is true even if the likely or actual effects of the two provisions constitute the relevant transactions. Petitioners argue that the admitting privileges requirement and the ASC requirements combined have the effect of unconstitutionally restricting access to abortions. Their brief repeatedly refers to the collective effect of the "requirements." Brief for Petitioners 40, 41, 42, 43, 44. They describe the admitting privileges and ASC requirements as delivering a "one-two punch." Id., at 40. They make no effort whatsoever to separate the effects of the two provisions.B The Court nevertheless holds that there are two "meaningful differences" that justify a departure from the general rule against splitting claims. Ante, at 16. Neither has merit.1 First, pointing to a statement in a pocket part to a treatise, the Court says that "courts normally treat challenges to distinct regulatory requirements as 'separate claims,' even when they are part of one overarching '[g]overnment regulatory scheme.' " Ante, at 16-17 (quoting 18 Wright & Miller §4408, at 54 (2d ed. 2002, Supp. 2016)). As support for this statement, the treatise cites one case, Hamilton's Bogarts, Inc. v. Michigan, 501 F. 3d 644, 650 (CA6 2007). Even if these authorities supported the rule invoked by the Court (and the Court points to no other authorities), they would hardly be sufficient to show that "courts normally" proceed in accordance with the Court's rule. But in fact neither the treatise nor the Sixth Circuit decision actually supports the Court's rule. What the treatise says is the following:"Government regulatory schemes provide regular examples of circumstances in which regulation of a single business by many different provisions should lead to recognition of separate claims when the business challenges different regulations." 18 Wright & Miller §4408, at 54 (emphasis added).Thus, the treatise expresses a view about what the law "should" be; it does not purport to state what courts "normally" do. And the recommendation of the treatise authors concerns different provisions of a "regulatory scheme," which often embodies an accumulation of legislative enactments. Petitioners challenge two provisions of one law, not just two provisions of a regulatory scheme. The Sixth Circuit decision is even further afield. In that case, the plaintiff had previously lost a case challenging one rule of a state liquor control commission. 501 F. 3d, at 649-650. On the question whether the final judgment in that case barred a subsequent claim attacking another rule, the court held that the latter claim was "likely" not barred because, "although [the first rule] was challenged in the first lawsuit, [the other rule] was not," and "[t]he state has not argued or made any showing that [the party] should also have challenged [the other rule] at the time." Id., at 650. To say that these authorities provide meager support for the Court's reasoning would be an exaggeration. Beyond these paltry authorities, the Court adds only the argument that we should not "encourage a kitchen-sink approach to any litigation challenging the validity of statutes." Ante, at 17. I agree — but that is not the situation in this case. The two claims here are very closely related. They are two parts of the same bill. They both impose new requirements on abortion clinics. They are justified by the State on the same ground, protection of the safety of women seeking abortions. They are both challenged as imposing the same kind of burden (impaired access to clinics) on the same kind of right (the right to abortion, as announced in Roe v. Wade, 410 U. S. 113 (1973), and Casey, 505 U. S. 833). And petitioners attack the two provisions as a package. According to petitioners, the two provisions were both enacted for the same illegitimate purpose — to close down Texas abortion clinics. See Brief for Petitioners 35-36. And as noted, petitioners rely on the combined effect of the two requirements. Petitioners have made little effort to identify the clinics that closed as a result of each requirement but instead aggregate the two requirements' effects. For these reasons, the two challenges "form a convenient trial unit." Restatement (Second) of Judgments §24(2). In fact, for a trial court to accurately identify the effect of each provision it would also need to identify the effect of the other provision. Cf. infra, at 30.2 Second, the Court claims that, at the time when petitioners filed their complaint in the first case, they could not have known whether future rules implementing the surgical center requirement would provide an exemption for existing abortion clinics. Ante, at 17. This argument is deeply flawed. "Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Regional Rail Reorganization Act Cases, 419 U. S. 102, 143 (1974). And here, there was never any real chance that the Texas Department of State Health Services would exempt existing abortion clinics from all the ASC requirements. As the Court of Appeals wrote, "it is abundantly clear from H. B. 2 that all abortion facilities must meet the standards already promulgated for ASCs." Whole Woman's Health v. Cole, 790 F. 3d 563, 583 (2015) (per curiam) (case below). See Tex. Health & Safety Code Ann. §245.010(a) (West Cum. Supp. 2015) (Rules implementing H. B. 2 "must contain minimum standards . . . for an abortion facility [that are] equivalent to the minimum standards . . . for ambulatory surgical centers"). There is no apparent basis for the argument that H. B. 2 permitted the state health department to grant blanket exemptions. Whether there was any real likelihood that clinics would be exempted from particular ASC requirements is irrelevant because both petitioners and the Court view the ASC requirements as an indivisible whole. Petitioners told the Fifth Circuit in unequivocal terms that they were "challeng[ing] H. B. 2 broadly, with no effort whatsoever to parse out specific aspects of the ASC requirement that they f[ou]nd onerous or otherwise infirm." 790 F. 3d, at 582. Similarly, the majority views all the ASC provisions as an indivisible whole. See ante, at 38 ("The statute was meant to require abortion facilities to meet the integrated surgical-center standards — not some subset thereof"). On this view, petitioners had no reason to wait to see whether the Department of State Health Services might exempt them from some of the ASC rules. Even if exemptions from some of the ASC rules had been granted, petitioners and the majority would still maintain that the provision of H. B. 2 making the ASC rules applicable to abortion facilities is facially unconstitutional. Thus, exemption from some of the ASC requirements would be entirely inconsequential. The Court has no response to this point. See ante, at 17. For these reasons, petitioners' facial attack on the ASC requirements, like their facial attack on the admitting privileges rule, is precluded.III Even if res judicata did not bar either facial claim, a sweeping, statewide injunction against the enforcement of the admitting privileges and ASC requirements would still be unjustified. Petitioners in this case are abortion clinics and physicians who perform abortions. If they were simply asserting a constitutional right to conduct a business or to practice a profession without unnecessary state regulation, they would have little chance of success. See, e.g., Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). Under our abortion cases, however, they are permitted to rely on the right of the abortion patients they serve. See Doe v. Bolton, 410 U. S. 179, 188 (1973); but see ante, at 2-5 (Thomas, J., dissenting). Thus, what matters for present purposes is not the effect of the H. B. 2 provisions on petitioners but the effect on their patients. Under our cases, petitioners must show that the admitting privileges and ASC requirements impose an "undue burden" on women seeking abortions. Gonzales v. Carhart, 550 U. S. 124, 146 (2007). And in order to obtain the sweeping relief they seek — facial invalidation of those provisions — they must show, at a minimum, that these provisions have an unconstitutional impact on at least a "large fraction" of Texas women of reproductive age.11 Id., at 167-168. Such a situation could result if the clinics able to comply with the new requirements either lacked the requisite overall capacity or were located too far away to serve a "large fraction" of the women in question. Petitioners did not make that showing. Instead of offering direct evidence, they relied on two crude inferences. First, they pointed to the number of abortion clinics that closed after the enactment of H. B. 2, and asked that it be inferred that all these closures resulted from the two challenged provisions. See Brief for Petitioners 23-24. They made little effort to show why particular clinics closed. Second, they pointed to the number of abortions performed annually at ASCs before H. B. 2 took effect and, because this figure is well below the total number of abortions performed each year in the State, they asked that it be inferred that ASC-compliant clinics could not meet the demands of women in the State. See App. 237-238. Petitioners failed to provide any evidence of the actual capacity of the facilities that would be available to perform abortions in compliance with the new law — even though they provided this type of evidence in their first case to the District Court at trial and then to this Court in their application for interim injunctive relief. Appendix, infra.A I do not dispute the fact that H. B. 2 caused the closure of some clinics. Indeed, it seems clear that H. B. 2 was intended to force unsafe facilities to shut down. The law was one of many enacted by States in the wake of the Kermit Gosnell scandal, in which a physician who ran an abortion clinic in Philadelphia was convicted for the first-degree murder of three infants who were born alive and for the manslaughter of a patient. Gosnell had not been actively supervised by state or local authorities or by his peers, and the Philadelphia grand jury that investigated the case recommended that the Commonwealth adopt a law requiring abortion clinics to comply with the same regulations as ASCs.12 If Pennsylvania had had such a requirement in force, the Gosnell facility may have been shut down before his crimes. And if there were any similarly unsafe facilities in Texas, H. B. 2 was clearly intended to put them out of business.13 While there can be no doubt that H. B. 2 caused some clinics to cease operation, the absence of proof regarding the reasons for particular closures is a problem because some clinics have or may have closed for at least four reasons other than the two H. B. 2 requirements at issue here. These are:1. H. B. 2's restriction on medication abortion. In their first case, petitioners challenged the provision of H. B. 2 that regulates medication abortion, but that part of the statute was upheld by the Fifth Circuit and not relitigated in this case. The record in this case indicates that in the first six months after this restriction took effect, the number of medication abortions dropped by 6,957 (compared to the same period the previous year). App. 236.2. Withdrawal of Texas family planning funds. In 2011, Texas passed a law preventing family planning grants to providers that perform abortions and their affiliates. In the first case, petitioners' expert admitted that some clinics closed "as a result of the defunding,"14 and as discussed below, this withdrawal appears specifically to have caused multiple clinic closures in West Texas. See infra, at 29, and n. 18.3. The nationwide decline in abortion demand. Petitioners' expert testimony relies15 on a study from the Guttmacher Institute which concludes that " '[t]he national abortion rate has resumed its decline, and no evidence was found that the overall drop in abortion incidence was related to the decrease in providers or to restrictions implemented between 2008 and 2011.' " App. 1117 (direct testimony of Dr. Peter Uhlenberg) (quoting R. Jones & J. Jerman, Abortion Incidence and Service Availability In the United States, 2011, 46 Perspectives on Sexual and Reproductive Health 3 (2014); emphasis in testimony). Consistent with that trend, "[t]he number of abortions to residents of Texas declined by 4,956 between 2010 and 2011 and by 3,905 between 2011 and 2012." App. 1118.4. Physician retirement (or other localized factors). Like everyone else, most physicians eventually retire, and the retirement of a physician who performs abortions can cause the closing of a clinic or a reduction in the number of abortions that a clinic can perform. When this happens, the closure of the clinic or the reduction in capacity cannot be attributed to H. B. 2 unless it is shown that the retirement was caused by the admitting privileges or surgical center requirements as opposed to age or some other factor. At least nine Texas clinics may have ceased performing abortions (or reduced capacity) for one or more of the reasons having nothing to do with the provisions challenged here. For example, in their first case, petitioners alleged that the medication-abortion restriction would cause at least three medication-only abortion clinics to cease performing abortions,16 and they predicted that "[o]ther facilities that offer both surgical and medication abortion will be unable to offer medication abortion,"17 presumably reducing their capacity. It also appears that several clinics (including most of the clinics operating in West Texas, apart from El Paso) closed in response to the unrelated law restricting the provision of family planning funds.18 And there is reason to question whether at least two closures (one in Corpus Christi and one in Houston) may have been prompted by physician retirements.19 Neither petitioners nor the District Court properly addressed these complexities in assessing causation — and for no good reason. The total number of abortion clinics in the State was not large. Petitioners could have put on evidence (as they did for 27 individual clinics in their first case, see Appendix, infra) about the challenged provisions' role in causing the closure of each clinic,20 and the court could have made a factual finding as to the cause of each closure. Precise findings are important because the key issue here is not the number or percentage of clinics affected, but the effect of the closures on women seeking abortions, i.e., on the capacity and geographic distribution of clinics used by those women. To the extent that clinics closed (or experienced a reduction in capacity) for any reason unrelated to the challenged provisions of H. B. 2, the corresponding burden on abortion access may not be factored into the access analysis. Because there was ample reason to believe that some closures were caused by these other factors, the District Court's failure to ascertain the reasons for clinic closures means that, on the record before us, there is no way to tell which closures actually count. Petitioners — who, as plaintiffs, bore the burden of proof — cannot simply point to temporal correlation and call it causation.B Even if the District Court had properly filtered out immaterial closures, its analysis would have been incomplete for a second reason. Petitioners offered scant evidence on the capacity of the clinics that are able to comply with the admitting privileges and ASC requirements, or on those clinics' geographic distribution. Reviewing the evidence in the record, it is far from clear that there has been a material impact on access to abortion. On clinic capacity, the Court relies on petitioners' expert Dr. Grossman, who compared the number of abortions performed at Texas ASCs before the enactment of H. B. 2 (about 14,000 per year) with the total number of abortions per year in the State (between 60,000-70,000 per year). Ante, at 32-33.21 Applying what the Court terms "common sense," the Court infers that the ASCs that performed abortions at the time of H. B. 2's enactment lacked the capacity to perform all the abortions sought by women in Texas. The Court's inference has obvious limitations. First, it is not unassailable "common sense" to hold that current utilization equals capacity; if all we know about a grocery store is that it currently serves 200 customers per week, ante, at 33, that fact alone does not tell us whether it is an overcrowded minimart or a practically empty supermarket. Faced with increased demand, ASCs could potentially increase the number of abortions performed without prohibitively expensive changes. Among other things, they might hire more physicians who perform abortions,22 utilize their facilities more intensively or efficiently, or shift the mix of services provided. Second, what matters for present purposes is not the capacity of just those ASCs that performed abortions prior to the enactment of H. B. 2 but the capacity of those that would be available to perform abortions after the statute took effect. And since the enactment of H. B. 2, the number of ASCs performing abortions has increased by 50%--from six in 2012 to nine today.23 The most serious problem with the Court's reasoning is that its conclusion is belied by petitioners' own submissions to this Court. In the first case, when petitioners asked this Court to vacate the Fifth Circuit's stay of the District Court's injunction of the admitting privileges requirement pending appeal, they submitted a chart previously provided in the District Court that detailed the capacity of abortion clinics after the admitting privileges requirement was to take effect.24 This chart is included as an Appendix to this opinion.25 Three of the facilities listed on the chart were ASCs, and their capacity was shown as follows:Southwestern Women's Surgery Center in Dallas was said to have the capacity for 5,720 abortions a year (110 per week);Planned Parenthood Surgical Health Services Center in Dallas was said to have the capacity for 6,240 abortions a year (120 per week); andPlanned Parenthood Center for Choice in Houston was said to have the capacity for 9,100 abortions a year (175 per week).26 See Appendix, infra. The average capacity of these three ASCs was 7,020 abortions per year.27 If the nine ASCs now performing abortions in Texas have the same average capacity, they have a total capacity of 63,180. Add in the assumed capacity for two other clinics that are operating pursuant to the judgment of the Fifth Circuit (over 3,100 abortions per year),28 and the total for the State is 66,280 abortions per year. That is comparable to the 68,298 total abortions performed in Texas in 2012, the year before H. B. 2 was enacted, App. 236,29 and well in excess of the abortion rate one would expect — 59,070 — if subtracting the apparent impact of the medication abortion restriction, see n. 21, supra. To be clear, I do not vouch for the accuracy of this calculation. It might be too high or too low. The important point is that petitioners put on evidence of actual clinic capacity in their earlier case, and there is no apparent reason why they could not have done the same here. Indeed, the Court asserts that, after the admitting privileges requirement took effect, clinics "were not able to accommodate increased demand," ante, at 35, but petitioners' own evidence suggested that the requirement had no effect on capacity, see n. 21, supra. On this point, like the question of the reason for clinic closures, petitioners did not discharge their burden, and the District Court did not engage in the type of analysis that should have been conducted before enjoining an important state law. So much for capacity. The other30 potential obstacle to abortion access is the distribution of facilities throughout the State. This might occur if the two challenged H. B. 2 requirements, by causing the closure of clinics in some rural areas, led to a situation in which a "large fraction"31 of women of reproductive age live too far away from any open clinic. Based on the Court's holding in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, it appears that the need to travel up to 150 miles is not an undue burden,32 and the evidence in this case shows that if the only clinics in the State were those that would have remained open if the judgment of the Fifth Circuit had not been enjoined, roughly 95% of the women of reproductive age in the State would live within 150 miles of an open facility (or lived outside that range before H. B. 2).33 Because the record does not show why particular facilities closed, the real figure may be even higher than 95%. We should decline to hold that these statistics justify the facial invalidation of the H. B. 2 requirements. The possibility that the admitting privileges requirement might have caused a closure in Lubbock is no reason to issue a facial injunction exempting Houston clinics from that requirement. I do not dismiss the situation of those women who would no longer live within 150 miles of a clinic as a result of H. B. 2. But under current doctrine such localized problems can be addressed by narrow as-applied challenges.IV Even if the Court were right to hold that res judicata does not bar this suit and that H. B. 2 imposes an undue burden on abortion access — it is, in fact, wrong on both counts — it is still wrong to conclude that the admitting privileges and surgical center provisions must be enjoined in their entirety. H. B. 2 has an extraordinarily broad severability clause that must be considered before enjoining any portion or application of the law. Both challenged provisions should survive in substantial part if the Court faithfully applies that clause. Regrettably, it enjoins both in full, heedless of the (controlling) intent of the state legislature. Cf. Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per curiam) ("Severability is of course a matter of state law").A Applying H. B. 2's severability clause to the admitting privileges requirement is easy. Simply put, the requirement must be upheld in every city in which its application does not pose an undue burden. It surely does not pose that burden anywhere in the eastern half of the State, where most Texans live and where virtually no woman of reproductive age lives more than 150 miles from an open clinic. See App. 242, 244 (petitioners' expert testimony that 82.5% of Texas women of reproductive age live within 150 miles of open clinics in Austin, Dallas, Fort Worth, Houston, and San Antonio). (Unfortunately, the Court does not address the State's argument to this effect. See Brief for Respondents 51.) And petitioners would need to show that the requirement caused specific West Texas clinics to close (but see supra, at 29, and n. 18) before they could be entitled to an injunction tailored to address those closures.B Applying severability to the surgical center requirement calls for the identification of the particular provisions of the ASC regulations that result in the imposition of an undue burden. These regulations are lengthy and detailed, and while compliance with some might be expensive, compliance with many others would not. And many serve important health and safety purposes. Thus, the surgical center requirements cannot be judged as a package. But the District Court nevertheless held that all the surgical center requirements are unconstitutional in all cases, and the Court sustains this holding on grounds that are hard to take seriously. When the Texas Legislature passed H. B. 2, it left no doubt about its intent on the question of severability. It included a provision mandating the greatest degree of severability possible. The full provision is reproduced below,34 but it is enough to note that under this provision "every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provisions in this Act, are severable from each other." H. B. 2, §10(b), App. to Pet. for Cert. 200a. And to drive home the point about the severability of applications of the law, the provision adds:"If any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature's intent and priority that the valid applications be allowed to stand alone." Ibid. This provision indisputably requires that all surgical center regulations that are not themselves unconstitutional be left standing. Requiring an abortion facility to comply with any provision of the regulations applicable to surgical centers is an "application of the provision" of H. B. 2 that requires abortion clinics to meet surgical center standards. Therefore, if some such applications are unconstitutional, the severability clause plainly requires that those applications be severed and that the rest be left intact. How can the Court possibly escape this painfully obvious conclusion? Its main argument is that it need not honor the severability provision because doing so would be too burdensome. See ante, at 38. This is a remarkable argument. Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, Art. VI, cl. 2, but in exercising this power, federal courts must take great care. The power to invalidate a state law implicates sensitive federal-state relations. Federal courts have no authority to carpet-bomb state laws, knocking out provisions that are perfectly consistent with federal law, just because it would be too much bother to separate them from unconstitutional provisions. In any event, it should not have been hard in this case for the District Court to separate any bad provisions from the good. Petitioners should have identified the particular provisions that would entail what they regard as an undue expense, and the District Court could have then concentrated its analysis on those provisions. In fact, petitioners did do this in their trial brief, Doc. 185, p. 8 in Lakey (Aug. 12, 2014) ("It is the construction and nursing requirements that form the basis of Plaintiffs' challenge"), but they changed their position once the District Court awarded blanket relief, see 790 F. 3d, at 582 (petitioners told the Fifth Circuit that they "challenge H. B. 2 broadly, with no effort whatsoever to parse out specific aspects of the ASC requirement that they find onerous or otherwise infirm"). In its own review of the ASC requirement, in fact, the Court follows petitioners' original playbook and focuses on the construction and nursing requirements as well. See ante, at 28-29 (detailed walkthrough of Tex. Admin. Code, tit. 25, §§135.15 (2016) (nursing), 135.52 (construction)). I do not see how it "would inflict enormous costs on both courts and litigants," ante, at 38, to single out the ASC regulations that this Court and petitioners have both targeted as the core of the challenge. By forgoing severability, the Court strikes down numerous provisions that could not plausibly impose an undue burden. For example, surgical center patients must "be treated with respect, consideration, and dignity." Tex. Admin. Code, tit. 25, §135.5(a). That's now enjoined. Patients may not be given misleading "advertising regarding the competence and/or capabilities of the organization." §135.5(g). Enjoined. Centers must maintain fire alarm and emergency communications systems, §§135.41(d), 135.42(e), and eliminate "[h]azards that might lead to slipping, falling, electrical shock, burns, poisoning, or other trauma," §135.10(b). Enjoined and enjoined. When a center is being remodeled while still in use, "[t]emporary sound barriers shall be provided where intense, prolonged construction noises will disturb patients or staff in the occupied portions of the building." §135.51(b)(3)(B)(vi). Enjoined. Centers must develop and enforce policies concerning teaching and publishing by staff. §§135.16(a), (c). Enjoined. They must obtain informed consent before doing research on patients. §135.17(e). Enjoined. And each center "shall develop, implement[,] and maintain an effective, ongoing, organization-wide, data driven patient safety program." §135.27(b). Also enjoined. These are but a few of the innocuous requirements that the Court invalidates with nary a wave of the hand. Any responsible application of the H. B. 2 severability provision would leave much of the law intact. At a minimum, both of the requirements challenged here should be held constitutional as applied to clinics in any Texas city that will have a surgical center providing abortions (i.e., those areas in which there cannot possibly have been an undue burden on abortion access). Moreover, as even the District Court found, the surgical center requirement is clearly constitutional as to new abortion facilities and facilities already licensed as surgical centers. Whole Woman's Health v. Lakey, 46 F. Supp. 3d 673, 676 (WD Tex. 2014). And we should uphold every application of every surgical center regulation that does not pose an undue burden — at the very least, all of the regulations as to which petitioners have never made a specific complaint supported by specific evidence. The Court's wholesale refusal to engage in the required severability analysis here revives the "antagonistic 'canon of construction under which in cases involving abortion, a permissible reading of a statute is to be avoided at all costs.' " Gonzales, 550 U. S., at 153-154 (quoting Stenberg v. Carhart, 530 U. S. 914, 977 (2000) (Kennedy, J., dissenting); some internal quotation marks omitted). If the Court is unwilling to undertake the careful severability analysis required, that is no reason to strike down all applications of the challenged provisions. The proper course would be to remand to the lower courts for a remedy tailored to the specific facts shown in this case, to "try to limit the solution to the problem." Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328 (2006).V When we decide cases on particularly controversial issues, we should take special care to apply settled procedural rules in a neutral manner. The Court has not done that here. I therefore respectfully dissent.APPENDIXApp. K to Emergency Application To Vacate Stay in O. T. 2013, No. 13A452, Plaintiffs' Trial Exh. 46FOOTNOTESFootnote 1 Compare, e.g., Gonzales v. Carhart, 550 U. S. 124 (2007), and Stenberg v. Carhart, 530 U. S. 914 (2000); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (assuming that physicians and clinics can vicariously assert women's right to abortion), with, e.g., Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per curiam); Hodgson v. Minnesota, 497 U. S. 417, 429 (1990); H. L. v. Matheson, 450 U. S. 398, 400 (1981); Williams v. Zbaraz, 448 U. S. 358, 361 (1980); Harris v. McRae, 448 U. S. 297, 303 (1980); Bellotti v. Baird, 428 U. S. 132, 137-138 (1976); Poelker v. Doe, 432 U. S. 519, 519 (1977) (per curiam); Beal v. Doe, 432 U. S. 438, 441-442 (1977); Maher v. Roe, 432 U. S. 464, 467 (1977) (women seeking abortions have capably asserted their own rights, as plaintiffs).Footnote 2 See Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1278-1291 (2007); see also Linzer, The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Const. Commentary 277, 277-278, 288-300 (1995); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 544 (1942) (Stone, C. J., concurring) (citing the Carolene Products footnote to suggest that the presumption of constitutionality did not fully apply to encroachments on the unenumerated personal liberty to procreate).FOOTNOTESFootnote 1 See, e.g., Note, Developments in the Law: Res Judicata, 65 Harv. L. Rev. 818, 824 (1952); Cleary, Res Judicata Reexamined, 57 Yale L. J. 339, 339-340 (1948).Footnote 2 Brief for Plaintiffs-Appellees in Abbott, No. 13-51008 (CA5), p. 5 (emphasis added); see also id., at 23-24 ("[T]he evidence established that as a result of the admitting privileges requirement, approximately one-third of the licensed abortion providers in Texas would stop providing abortions. . . . As a result, one in three women in Texas would be unable to access desired abortion services. . . . [T]he immediate, wide-spread reduction of services caused by the admitting privileges requirement would produce a shortfall in the capacity of providers to serve all of the women seeking abortions" (emphasis added)).Footnote 3 Even if the "operative facts" were actual clinic closures, the claims in the two cases would still be the same. The Court suggests that many clinics closed between the time of the Fifth Circuit's decision in the first case and the time of the District Court's decision in the present case by comparing what the Court of Appeals said in Abbott about the effect of the admitting privileges requirement alone, 748 F. 3d, at 598 ("All of the major Texas cities . . . continue to have multiple clinics where many physicians will have or obtain hospital admitting privileges"), with what the District Court said in this case about the combined effect of the admitting privileges requirement and the ambulatory surgical center requirement, 46 F. Supp. 3d 673, 680 (WD Tex. 2014) (Were the surgical center requirement to take effect on September 1, 2014, only seven or eight clinics would remain open). See ante, at 14-15. Obviously, this comparison does not show that the effect of the admitting privileges requirement alone was greater at the time of the District Court's decision in this second case. Simply put, the Court presents no new clinic closures allegedly caused by the admitting privileges requirement beyond those already accounted for in Abbott, as I discuss, infra, at 15-17, and accompanying notes.Footnote 4 I need not quibble with the Court's authorities stating that facial relief can sometimes be appropriate even where a plaintiff has requested only as-applied relief. Ante, at 15. Assuming that this is generally proper, it does not follow that this may be done where the plaintiff is precluded by res judicata from bringing a facial claim.Footnote 5 See ante, at 13 (citing United States v. Carolene Products Co., 304 U. S. 144, 153 (1938), and Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405, 415 (1935)).Footnote 6 The Court's contaminated-water hypothetical, see ante, at 12-13, may involve such a situation. If after their loss in the first suit, the same prisoners continued to drink the water, they would not be barred from suing to recover for subsequent injuries suffered as a result. But if the Court simply means that the passage of time would allow the prisoners to present better evidence in support of the same claim, the successive suit would be barred for the reasons I have given. In that event, their recourse would be to move for relief from the judgment. See Restatement (Second) of Judgments §73..Footnote 7 See also Sutliffe v. Epping School Dist., 584 F. 3d 314, 328 (CA1 2009) ("[W]hen a defendant is accused of ... acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the defendant as well as the public convenience may require that they be dealt with in the same action, and the events are said to constitute but one transaction" (internal quotation marks omitted)); Monahan v. New York City Dept. of Corrections, 214 F. 3d 275, 289 (CA2 2000) ("Plaintiffs' assertion of new incidents arising from the application of the challenged policy is also insufficient to bar the application of res judicata"); Huck v. Dawson, 106 F. 3d 45, 49 (CA3 1997) (applying res judicata where "the same facts that resulted in the earlier judgment have caused continued damage").Footnote 8 As I explain, infra, at 29, and n. 18, some of the closures presumably included in the Court's count of 19 were not attributed to H. B. 2 at the first trial, even by petitioners.Footnote 9 The Abbott panel's refusal to consider "developments since the conclusion of the bench trial," 748 F. 3d, at 599, n. 14, was not addressed to the evidence of 15 closures presented at trial. The Court of Appeals in fact credited that evidence by assuming "some clinics may be required to shut their doors," but it nevertheless concluded that "there is no showing whatsoever that any woman will lack reasonable access to a clinic within Texas." Id., at 598. The Abbott decision therefore accepted the factual premise common to these two actions — namely, that the admitting privileges requirement would cause some clinics to close — but it concluded that petitioners had not proved a burden on access regardless. In rejecting Abbott's conclusion, the Court seems to believe that Abbott also must have refused to accept the factual premise. See ante, at 13-15.Instead, Abbott's footnote 14 appears to have addressed the following post-trial developments: (1) the permanent closure of the Lubbock clinic, Brief for Plaintiffs-Appellees in Abbott (CA5), at 5, n. 3 (accounted for among the 15 anticipated closures, see Appendix, infra); (2) the resumption of abortion services in Fort Worth, Brief for Plaintiffs-Appellees, at 5, n. 3; (3) the acquisition of admitting privileges by an Austin abortion provider, id., at 6, n. 4; (4) the acquisition of privileges by physicians in Dallas and San Antonio, see Letter from J. Crepps to L. Cayce, Clerk of Court in Abbott (CA5, Jan. 3, 2014); (5) the acquisition of privileges by physicians in El Paso and Killeen, see Letter from J. Crepps to L. Cayce, Clerk of Court in Abbott (CA5, Mar. 21, 2014); and (6) the enforcement of the requirement against one Houston provider who lacked privileges, see ibid. (citing Texas Medical Board press release). In the five months between the admitting privileges requirement taking effect and the Fifth Circuit's Abbott decision, then, the parties had ample time to inform that court of post-trial developments — and petitioners never identified the 15 closures as new (because the closures were already accounted for in their trial evidence). In fact, the actual new developments largely favored the State's case: In that time, physicians in Austin, Dallas, El Paso, Fort Worth, Killeen, and San Antonio were able to come into compliance, while only one in Houston was not, and one clinic (already identified at trial as expected to close) closed permanently. So Abbott's decision to ignore post-trial developments quite likely favored petitioners.Footnote 10 See also In re Marriage of Shaddle, 317 Ill. App. 3d 428, 430-432, 740 N. E. 2d 525, 528-529 (2000) (child custody); In re Hope M., 1998 ME 170, ¶5, 714 A. 2d 152, 154 (termination of parental rights); In re Connors, 255 Ill. App. 3d 781, 784-785, 627 N. E. 2d 1171, 1173-1174 (1994) (civil commitment); Kent V. v. State, 233 P. 3d 597, 601, and n. 12 (Alaska 2010) (applying Comment f to termination of parental rights); In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-319, 460 A. 2d 1277, 1282 (1983) (same); In re Strozzi, 112 N. M. 270, 274, 814 P. 2d 138, 142 (App. 1991) (guardianship and conservatorship); Andrulonis v. Andrulonis, 193 Md. App. 601, 617, 998 A. 2d 898, 908 (2010) (modification of alimony); In re Marriage of Pedersen, 237 Ill. App. 3d 952, 957, 605 N. E. 2d 629, 633 (1992) (same); Friederwitzer v. Friederwitzer, 55 N. Y. 2d 89, 94-95, 432 N. E. 2d 765, 768 (1982) (child custody).Footnote 11 The proper standard for facial challenges is unsettled in the abortion context. See Gonzales, 550 U. S., at 167-168 (comparing Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) ("[B]ecause appellees are making a facial challenge to a statute, they must show that no set of circumstances exists under which the Act would be valid" (internal quotation marks omitted)), with Casey, 505 U. S., at 895 (opinion of the Court) (indicating a spousal-notification statute would impose an undue burden "in a large fraction of the cases in which [it] is relevant" and holding the statutory provision facially invalid)). Like the Court in Gonzales, supra, at 167-168, I do not decide the question, and use the more plaintiff-friendly "large fraction" formulation only because petitioners cannot meet even that test. The Court, by contrast, applies the "large fraction" standard without even acknowledging the open question. Ante, at 39. In a similar vein, it holds that the fraction's "relevant denominator is 'those [women] for whom [the provision] is an actual rather than an irrelevant restriction.' " Ibid. (quoting Casey, 505 U. S., at 895). I must confess that I do not understand this holding. The purpose of the large-fraction analysis, presumably, is to compare the number of women actually burdened with the number potentially burdened. Under the Court's holding, we are supposed to use the same figure (women actually burdened) as both the numerator and the denominator. By my math, that fraction is always "1," which is pretty large as fractions go.Footnote 12 Report of Grand Jury in No. 0009901-2008 (1st Jud. Dist. Pa., Jan. 14, 2011), p. 248-249, online at http://www.phila.gov/districtattorney/ pdfs/grandjurywomensmedical.pdf (all Internet materials as last visited June 24, 2016).Footnote 13 See House Research Org., Laubenberg et al., Bill Analysis 10 (July 9, 2013), online at http://www.hro.house.state.tx.us/pdf/ba832/ hb0002.pdf ("Higher standards could prevent the occurrence of a situation in Texas like the one recently exposed in Philadelphia, in which Dr. Kermit Gosnell was convicted of murder after killing babies who were born alive. A patient also died at that substandard clinic"). The Court attempts to distinguish the Gosnell horror story by pointing to differences between Pennsylvania and Texas law. See ante, at 27-28. But Texas did not need to be in Pennsylvania's precise position for the legislature to rationally conclude that a similar law would be helpful.Footnote 14 Rebuttal Decl. of Dr. Joseph E. Potter, Doc. 76-2, p. 12, ¶32, in Abbott (WD Tex., Oct. 18, 2013) (Potter Rebuttal Decl.).Footnote 15 See App. 234, 237, 253.Footnote 16 Complaint and Application for Preliminary and Permanent Injunction in Abbott (WD Tex.), ¶¶10, 11 (listing one clinic in Stafford and two in San Antonio).Footnote 17 Id., ¶88.Footnote 18 In the first case, petitioners apparently did not even believe that the abortion clinics in Abilene, Bryan, Midland, and San Angelo were made to close because of H. B. 2. In that case, petitioners submitted a list of 15 clinics they believed would close (or have severely limited capacity) because of the admitting privileges requirement — and those four West Texas clinics are not on the list. See Appendix, infra. And at trial, a Planned Parenthood executive specifically testified that the Midland clinic closed because of the funding cuts and because the clinic's medical director retired. See 1 Tr. 91, 93, in Abbott (WD Tex., Oct. 21, 2013). Petitioners' list and Planned Parenthood's testimony both fit with petitioners' expert's admission in the first case that some clinics closed "as a result of the defunding." Potter Rebuttal Decl. ¶32.Footnote 19 See Stoelje, Abortion Clinic Closes in Corpus Christi, San Antonio Express-News (June 10, 2014), online at http://www.mysanantonio.com/ news/local/article/Abortion-clinic-closes-in-Corpus-Christi-5543125.php (provider "retiring for medical reasons"); 1 Plaintiffs' Exh. 18, p. 2, in Whole Woman's Health v. Lakey, No. 1:14-cv-284 (WD Tex., admitted into evidence Aug. 4, 2014) (e-mail stating Houston clinic owner "is retiring his practice"). Petitioners should have been required to put on proof about the reason for the closure of particular clinics. I cite the extrarecord Corpus Christi story only to highlight the need for such proof.Footnote 20 This kind of evidence was readily available; in fact, petitioners deposed at least one nonparty clinic owner about the burden posed by H. B. 2. See App. 1474. And recall that in their first case, petitioners put on evidence purporting to show how the admitting privileges requirement would (or would not) affect 27 clinics. See Appendix, infra (petitioners' chart of clinics).Footnote 21 In the first case, petitioners submitted a report that Dr. Grossman coauthored with their testifying expert, Dr. Potter. 1 Tr. 38 in Lakey (Aug. 4, 2014) (Lakey Tr.). That report predicted that "the shortfall in capacity due to the admitting privileges requirement will prevent at least 22,286 women" from accessing abortion. Decl. of Dr. Joseph E. Potter, Doc. 9-8, p. 4, in Abbott (WD Tex., Oct. 1, 2013). The methodology used was questionable. See Potter Rebuttal Decl. ¶18. As Dr. Potter admitted: "There's no science there. It's just evidence." 2 Tr. 23 in Abbott (WD Tex., Oct. 22, 2013). And in this case, in fact, Dr. Grossman admitted that their prediction turned out to be wildly inaccurate. Specifically, he provided a new figure (approximately 9,200) that was less than half of his earlier prediction. 1 Lakey Tr. 41. And he then admitted that he had not proven any causal link between the admitting privileges requirement and that smaller decline. Id., at 54 (quoting Grossman et al., Change in Abortion Services After Implementation of a Restrictive Law in Texas, 90 Contraception 496, 500 (2014)). Dr. Grossman's testimony in this case, furthermore, suggested that H. B. 2's restriction on medication abortion (whose impact on clinics cannot be attributed to the provisions challenged in this case) was a major cause in the decline in the abortion rate. After the medication abortion restriction and admitting privileges requirement took effect, over the next six months the number of medication abortions dropped by 6,957 compared to the same period in the previous year. See App. 236. The corresponding number of surgical abortions rose by 2,343. See ibid. If that net decline of 4,614 in six months is doubled to approximate the annual trend (which is apparently the methodology Dr. Grossman used to arrive at his 9,200 figure, see 90 Contraception, supra, at 500), then the year's drop of 9,228 abortions seems to be entirely the product of the medication abortion restriction. Taken together, these figures make it difficult to conclude that the admitting privileges requirement actually depressed the abortion rate at all. In light of all this, it is unclear why the Court takes Dr. Grossman's testimony at face value. Footnote 22 The Court asserts that the admitting privileges requirement is a bottleneck on capacity, ante, at 34, but it musters no evidence and does not even dispute petitioners' own evidence that the admitting privileges requirement may have had zero impact on the Texas abortion rate, n. 21, supra. Footnote 23 See Brief for Petitioners 23-24 (six centers in 2012, compared with nine today). Two of the three new surgical centers opened since this case was filed are operated by Planned Parenthood (which now owns five of the nine surgical centers in the State). See App. 182-183, 1436. Planned Parenthood is obviously able to comply with the challenged H. B. 2 requirements. The president of petitioner Whole Woman's Health, a much smaller entity, has complained that Planned Parenthood " 'put[s] local independent businesses in a tough situation.' " Simon, Planned Parenthood Hits Suburbia, Wall Street Journal Online (June 23, 2008) (cited in Brief for CitizenLink et al. as Amici Curiae 15-16, and n. 23). But as noted, petitioners in this case are not asserting their own rights but those of women who wish to obtain an abortion, see supra, at 24, and thus the effect of the H. B. 2 requirements on petitioners' business and professional interests are not relevant.Footnote 24 See Appendix, infra. The Court apparently brushes off this evidence as "outside the record," ante, at 35, but it was filed with this Court by the same petitioners in litigation closely related to this case. And "we may properly take judicial notice of the record in that litigation between the same parties who are now before us." Shuttlesworth v. Birmingham, 394 U. S. 147, 157 (1969); see also, e.g., United States v. Pink, 315 U. S. 203, 216 (1942); Freshman v. Atkins, 269 U. S. 121, 124 (1925).Footnote 25 The chart lists the 36 abortion clinics apparently open at the time of trial, and identifies the "Capacity after Privileges Requirement" for 27 of those clinics. Of those 27 clinics, 24 were owned by plaintiffs in the first case, and 3 (Coastal Birth Control Center, Hill Top Women's Reproductive Health Services, and Harlingen Reproductive Services) were owned by nonparties. It is unclear why petitioners' chart did not include capacity figures for the other nine clinics (also owned by nonparties). Under Federal Rule of Civil Procedure 30(b)(6), petitioners should have been able to depose representatives of those clinics to determine those clinics' capacity and their physicians' access to admitting privileges. In the present case, petitioners in fact deposed at least one such nonparty clinic owner, whose testimony revealed that he was able to comply with the admitting privileges requirement. See App. 1474 (testimony of El Paso abortion clinic owner, confirming that he possesses admitting privileges "at every hospital in El Paso" (filed under seal)). The chart states that 14 of those clinics would not be able to perform abortions if the requirement took effect, and that another clinic would have "severely limited" capacity. See Appendix, infra.Footnote 26 The Court nakedly asserts that this clinic "does not represent most facilities." Ante, at 35. Given that in this case petitioners did not introduce evidence on "most facilities," I have no idea how the Court arrives at this conclusion.Footnote 27 The Court chides me, ante, at 35, for omitting the Whole Woman's Health ASC in San Antonio from this average. As of the Abbott trial in 2013, that ASC's capacity was (allegedly) to be "severely limited" by the admitting privileges requirement. See Appendix, infra (listing "Capacity after Privileges Requirement"). But that facility came into compliance with that requirement a few months later, see Letter from J. Crepps to L. Cayce, Clerk of Court in Abbott (CA5, Jan. 3, 2014), so its precompliance capacity is irrelevant here.Footnote 28 Petitioner Whole Woman's Health performed over 14,000 abortions over 10 years in McAllen. App. 128. Petitioner Nova Health Systems performed over 17,000 abortions over 10 years in El Paso. Id., at 129. (And as I explain at n. 33, infra, either Nova Health Systems or another abortion provider will be open in the El Paso area however this case is decided.)Footnote 29 This conclusion is consistent with public health statistics offered by petitioners. These statistics suggest that ASCs have a much higher capacity than other abortion facilities. In 2012, there were 14,361 abortions performed by six surgical centers, meaning there were 2,394 abortions per center. See Brief for Petitioners 23; App. 236. In 2012, there were approximately 35 other abortion clinics operating in Texas, see id., at 228 (41 total clinics as of Nov. 1, 2012), which performed 53,937 abortions, id., at 236 (68,298 total minus 14,361 performed in surgical centers). On average, those other clinics each performed 53,937÷35=1,541 abortions per year. So surgical centers in 2012 performed 55% more abortions per facility (2,394 abortions) than the average (1,541) for other clinics.Footnote 30 The Court also gives weight to supposed reductions in "individualized attention, serious conversation, and emotional support" in its undue-burden analysis. Ante, at 36. But those "facts" are not in the record, so I have no way of addressing them.Footnote 31 See n. 11, supra.Footnote 32 The District Court in Casey found that 42% of Pennsylvania women "must travel for at least one hour, and sometimes longer than three hours, to obtain an abortion from the nearest provider." 744 F. Supp. 1323, 1352 (ED Pa. 1990), aff'd in part, rev'd in part, 947 F. 2d 682 (CA3 1991), aff'd in part, rev'd in part, 505 U. S. 833 (1992). In that case, this Court recognized that the challenged 24-hour waiting period would require some women to make that trip twice, and yet upheld the law regardless. See id., at 886-887.Footnote 33 Petitioners' expert testified that 82.5% of Texas women of reproductive age live within 150 miles of a Texas surgical center that provides abortions. See App. 242 (930,000 women living more than 150 miles away), 244 (5,326,162 women total). The State's expert further testified, without contradiction, that an additional 6.2% live within 150 miles of the McAllen facility, and another 3.3% within 150 miles of an El Paso-area facility. Id., at 921-922. (If the Court did not award statewide relief, I assume it would instead either conclude that the availability of abortion on the New Mexico side of the El Paso metropolitan area satisfies the Constitution, or it would award as-applied relief allowing petitioner Nova Health Systems to remain open in El Paso. Either way, the 3.3% figure would remain the same, because Nova's clinic and the New Mexico facility are so close to each other. See id., at 913, 916, 921 (only six women of reproductive age live within 150 miles of Nova's clinic but not New Mexico clinic).) Together, these percentages add up to 92.0% of Texas women of reproductive age.Separately, the State's expert also testified that 2.9% of women of reproductive age lived more than 150 miles from an abortion clinic before H. B. 2 took effect. Id., at 916.So, at most, H. B. 2 affects no more than (100%-2.9%)-92.0%=5.1% of women of reproductive age. Also recall that many rural clinic closures appear to have been caused by other developments — indeed, petitioners seemed to believe that themselves — and have certainly not been shown to be caused by the provisions challenged here. See supra, at 29, and n. 18. So the true impact is almost certainly smaller than 5.1%.Footnote 34 The severability provision states: "(a) If some or all of the provisions of this Act are ever temporarily or permanently restrained or enjoined by judicial order, all other provisions of Texas law regulating or restricting abortion shall be enforced as though the restrained or enjoined provisions had not been adopted; provided, however, that whenever the temporary or permanent restraining order or injunction is stayed or dissolved, or otherwise ceases to have effect, the provisions shall have full force and effect."(b) Mindful of Leavitt v. Jane L., in which in the context of determining the severability of a state statute regulating abortion the United States Supreme Court held that an explicit statement of legislative intent is controlling, it is the intent of the legislature that every provision, section, subsection, sentence, clause, phrase, or word in this Act, and every application of the provisions in this Act, are severable from each other. If any application of any provision in this Act to any person, group of persons, or circumstances is found by a court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this Act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the legislature's intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this Act to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not present an undue burden shall be severed from the remaining provisions and shall remain in force, and shall be treated as if the legislature had enacted a statute limited to the persons, group of persons, or circumstances for which the statute's application does not present an undue burden. The legislature further declares that it would have passed this Act, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this Act, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this Act, were to be declared unconstitutional or to represent an undue burden."(c) [omitted — applies to late-term abortion ban only]"(d) If any provision of this Act is found by any court to be unconstitutionally vague, then the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force." H. B. 2, §10, App. to Pet. for Cert. 199a-201a. |
0 | Over respondent's protest and without a warrant, police in the course of station-house questioning in connection with a murder took samples from the respondent's fingernails and discovered evidence used to convict him. Respondent had come to the station house voluntarily and had not been arrested, although he was detained and there was probable cause to believe that he had committed the murder. In reversing the District Court's denial of habeas corpus, the Court of Appeals concluded that, absent arrest or other exigent circumstances, the search was unconstitutional. Held: In view of the station-house detention upon probable cause, the very limited intrusion undertaken to preserve highly evanescent evidence was not violative of the Fourth and Fourteenth Amendments. Pp. 293-296. 461 F.2d 1006, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a concurring statement, post, p. 297. MARSHALL, J., filed a concurring opinion, post, p. 297. BLACKMUN, J., filed a concurring opinion, in which BURGER, C. J., joined, post, p. 300. POWELL, J., filed a concurring opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 300. DOUGLAS, J., post, p. 301, and BRENNAN, J., post, p. 305, filed opinions dissenting in part.Thomas H. Denney, Assistant Attorney General of Oregon, argued the cause for petitioner. With him on the brief were Lee Johnson, Attorney General, and John W. Osborn, Solicitor General.Howard R. Lonergan argued the cause and filed a brief for respondent.* [Footnote *] Alan S. Ganz, Frank Carrington, Ronald E. Sherk, and Fred E. Inbau filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal. Melvin L. Wulf, Burt Neuborne, and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance. MR. JUSTICE STEWART delivered the opinion of the Court.The respondent, Daniel Murphy, was convicted by a jury in an Oregon court of the second-degree murder of his wife. The victim died by strangulation in her home in the city of Portland, and abrasions and lacerations were found on her throat. There was no sign of a break-in or robbery. Word of the murder was sent to the respondent, who was not then living with his wife. Upon receiving the message, Murphy promptly telephoned the Portland police and voluntarily came into Portland for questioning. Shortly after the respondent's arrival at the station house, where he was met by retained counsel, the police noticed a dark spot on the respondent's finger. Suspecting that the spot might be dried blood and knowing that evidence of strangulation is often found under the assailant's fingernails, the police asked Murphy if they could take a sample of scrapings from his fingernails. He refused. Under protest and without a warrant, the police proceeded to take the samples, which turned out to contain traces of skin and blood cells, and fabric from the victim's nightgown. This incriminating evidence was admitted at the trial.The respondent appealed his conviction, claiming that the fingernail scrapings were the product of an unconstitutional search under the Fourth and Fourteenth Amendments. The Oregon Court of Appeals affirmed the conviction, 2 Ore. App. 251, 465 P.2d 900, and we denied certiorari, . Murphy then commenced the present action for federal habeas corpus relief. The District Court, in an unreported decision, denied the habeas petition, and the Court of Appeals for the Ninth Circuit reversed, 461 F.2d 1006. The Court of Appeals assumed the presence of probable cause to search or arrest, but held that in the absence of an arrest or other exigent circumstances, the search was unconstitutional. Id., at 1007. We granted certiorari, , to consider the constitutional question presented.The trial court, the Oregon Court of Appeals, and the Federal District Court all agreed that the police had probable cause to arrest the respondent at the time they detained him and scraped his fingernails. As the Oregon Court of Appeals said,"At the time the detectives took these scrapings they knew: "The bedroom in which the wife was found dead showed no signs of disturbance, which fact tended to indicate a killer known to the victim rather than to a burglar or other stranger. "The decedent's son, the only other person in the house that night, did not have fingernails which could have made the lacerations observed on the victim's throat. "The defendant and his deceased wife had had a stormy marriage and did not get along well. "The defendant had, in fact, been at his home on the night of the murder. He left and drove back to central Oregon claiming that he did not enter the house or see his wife. He volunteered a great deal of information without being asked, yet expressed no concern or curiosity about his wife's fate." 2 Ore. App., at 259-260, 465 P.2d. at 904. The Court of Appeals for the Ninth Circuit did not disagree with the conclusion that the police had probable cause to make an arrest, 461 F.2d. at 1007, nor do we. It is also undisputed that the police did not obtain an arrest warrant or formally "arrest" the respondent, as that term is understood under Oregon law.1 The respondent was detained only long enough to take the fingernail scrapings, and was not formally "arrested" until approximately one month later. Nevertheless, the detention of the respondent against his will constituted a seizure of his person, and the Fourth Amendment guarantee of freedom from "unreasonable searches and seizures" is clearly implicated, cf. United States v. Dionisio, , Terry v. Ohio, . As the Court said in Davis v. Mississippi, , "Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed `arrests' or `investigatory detentions.'"In Davis, the Court held that fingerprints obtained during the brief detention of persons seized in a police dragnet procedure, without probable cause, were inadmissible in evidence. Though the Court recognized that fingerprinting "involves none of the probing into an individual's private life and thoughts that marks an interrogation or search," id., at 727, the Court held the station-house detention in that case to be violative of the Fourth and Fourteenth Amendments. "Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention," id., at 726.The respondent in this case, like Davis, was briefly detained at the station house. Yet here, there was, as three courts have found, probable cause to believe that the respondent had committed the murder. The vice of the detention in Davis is therefore absent in the case before us. Cf. United States v. Dionisio, supra.The inquiry does not end here, however, because Murphy was subjected to a search as well as a seizure of his person. Unlike the fingerprinting in Davis, the voice exemplar obtained in United States v. Dionisio, supra, or the handwriting exemplar obtained in United States v. Mara, , the search of the respondent's fingernails went beyond mere "physical characteristics ... constantly exposed to the public," United States v. Dionisio, supra, at 14, and constituted the type of "severe, though brief, intrusion upon cherished personal security" that is subject to constitutional scrutiny. Terry v. Ohio, supra, at 24-25.We believe this search was constitutionally permissible under the principles of Chimel v. California, . Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. Id., at 755-762. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id., at 762-763. The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement.2 Thus, a warrantless search incident to arrest, the Court held in Chimel, must be limited to the area "into which an arrestee might reach." Id., at 763. Where there is no formal arrest, as in the case before us, a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence on his person. Since he knows he is going to be released, he might be likely instead to be concerned with diverting attention away from himself. Accordingly, we do not hold that a full Chimel search would have been justified in this case without a formal arrest and without a warrant. But the respondent was not subjected to such a search.At the time Murphy was being detained at the station house, he was obviously aware of the detectives' suspicions. Though he did not have the full warning of official suspicion that a formal arrest provides, Murphy was sufficiently apprised of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention. Testimony at trial indicated that after he refused to consent to the taking of fingernail samples, he put his hands behind his back and appeared to rub them together. He then put his hands in his pockets, and a "metallic sound, such as keys or change rattling" was heard. The rationale of Chimel, in these circumstances, justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails, cf. Schmerber v. California, .On the facts of this case, considering the existence of probable cause, the very limited intrusion undertaken incident to the station house detention, and the ready destructibility of the evidence, we cannot say that this search violated the Fourth and Fourteenth Amendments. Accordingly, the judgment of the Court of Appeals is Reversed. MR. JUSTICE WHITE joins the opinion of the Court but does not consider the issue of probable cause to have been decided here or to be foreclosed on remand to the Court of Appeals where it has never been considered. |
7 | Petitioner John Hancock Mutual Life Insurance Company (Hancock) and respondent Harris Trust and Savings Bank (Harris), the current trustee of a corporation's retirement plan, are party to Group Annuity Contract No. 50 (GAC 50), an agreement of a type known as a "participating group annuity." Under such a contract, the insurer commingles with its general corporate assets deposits received to secure retiree benefits, and does not immediately apply those deposits to the purchase of annuities. During the life of the contract, however, amounts credited to the deposit account may be converted into a stream of guaranteed benefits for individual retirees. Funds in excess of those that have been so converted are referred to as "free funds." Dissatisfied over its inability to gain access to GAC 50's free funds, Harris filed this suit pursuant to, inter alia, the Employee Retirement Income Security Act of 1974 (ERISA), alleging that Hancock is managing "plan assets," and therefore is subject to ERISA's fiduciary standards in its administration of GAC 50. Hancock responded that its undertaking fits within the ERISA provision, 29 U.S.C. 1101(b)(2)(B), that excludes from "plan assets" a "guaranteed benefit policy," defined as an insurance policy or contract "to the extent that [it] provides for benefits the amount of which is guaranteed by the insurer." The District Court granted Hancock summary judgment on the ERISA claims, holding that it was not a fiduciary with respect to any portion of GAC 50. Reversing in part, the Court of Appeals held that the "guaranteed benefit policy" exclusion did not cover Page II the GAC 50 free funds, as to which Hancock provides no guarantee of benefit payments or fixed rates of return.Held: Because the GAC 50 free funds are "plan assets," Hancock's actions in regard to their management and disposition must be judged against ERISA's fiduciary standards. Pp. 7-24. (a) The import of the pertinent ERISA provisions, read as a whole and in light of the statute's broad purpose of protecting retirement benefits, is reasonably clear. In contrast to other ERISA provisions creating unqualified exemptions from the statute's reach, Congress specifically instructed, by the words of limitation it used in 1101(b)(2)(B), that the guaranteed benefit policy exclusion be closely contained: the deposits over which Hancock is exercising authority or control under GAC 50 must have been obtained "solely" by reason of the issuance of "an insurance policy or contract" that provides for benefits "the amount of which is guaranteed," and even then the exemption applies only "to the extent" that GAC 50 provides for such benefits. Pp. 7-9. (b) The Court rejects Hancock's contention that, because Congress reserved to the States primary responsibility for regulating the insurance industry, ERISA's requirement that a fiduciary act "solely in the interest of ... participants and beneficiaries and ... for the exclusive purpose of ... providing benefits," 1104(a)(1)(A)(i) (emphasis added), must yield to conflicting state law requirements that an insurer managing general account assets consider the interest of, and maintain equity among, all of its contractholders, creditors, and shareholders. The McCarran-Ferguson Act - which provides, among other things, that no federal "Act ... shall be construed to ... supersede any [state] law ... enacted ... for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance" - does not support Hancock's contention, since ERISA and the guaranteed benefit policy provision obviously and specifically "relat[e] to the business of insurance." Moreover, although state laws concerning an insurer's management of general account assets "regulat[e] insurance" in the words of ERISA's saving clause - which instructs that ERISA "shall not be construed to exempt ... any person from any [state] law ... which regulates insurance," 1144(b)(2)(A) - state laws regulating general accounts also can "relate to [an] employee benefit plan" under ERISA's encompassing preemption clause, which directs that the statute "shall supersede any and all State laws insofar as they ... relate to any employee benefit plan," 1144(a). There is no solid basis for believing that Congress, when it designed ERISA, intended Page III fundamentally to alter traditional preemption analysis. Thus, ERISA leaves room for complementary or dual federal and state regulation, and calls for federal supremacy when the two regimes cannot be harmonized or accommodated. Pp. 9-14. (c) Hancock is an ERISA fiduciary with respect to the free funds it holds under GAC 50. To determine whether a contract qualifies as a guaranteed benefit policy, each component of the contract bears examination. A component fits within the guaranteed benefit policy exclusion only if it allocates investment risk to the insurer. Cf., e.g., SEC v. United Benefit Life Ins. Co., . Such an allocation is present when the insurer provides a genuine guarantee of an aggregate amount of benefits payable to retirement plan participants and their beneficiaries, as Hancock indisputably did with respect to certain GAC 50 benefits not at issue. As to a contract's free funds, the insurer must guarantee a reasonable rate of return on those funds and provide a mechanism to convert them into guaranteed benefits at rates set by the contract. While another contract, with a different set of features, might satisfy these requirements, GAC 50 does not; indeed, Hancock provided no real guarantee that benefits in any amount would be payable from the free funds. Pp. 14-20. (d) The Court declines to follow the Labor Department's view that ERISA's fiduciary obligations do not apply in relation to assets held by an insurer in its general account under contracts like GAC 50. The 1975 interpretive bulletin assertedly expressing this view did not originally have the scope now attributed to it, since it expressly addressed only a question regarding the scope of the prohibited transaction rules, and did not mention or elaborate upon its applicability to the guaranteed benefit policy exemption or explain how an unqualified exclusion for an insurer's general asset account can be reconciled with Congress' choice of a more limited ("to the extent that") formulation. Moreover, as of 1992, the Department apparently had no firm position to communicate, since it declined to file a brief in the Court of Appeals, citing the need to fully consider all of the implications of the issues. This Court will not accord deference to the Department's current view, since, by reading the statutory words "to the extent" to mean nothing more than "if," the Department has exceeded the scope of available ambiguity. Pp. 20-24. 970 F.2d 1138, affirmed.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, SCALIA, and SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which O'CONNOR and KENNEDY, JJ., joined. [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 1] JUSTICE GINSBURG delivered the opinion of the Court.This case presents an issue of statutory construction - whether the fiduciary standards stated in the Employee Retirement Income Security Act of 1974 (ERISA) govern an insurance company's conduct in relation to certain annuity contracts. Fiduciary status under ERISA generally attends the management of "plan assets." The statute, however, contains no comprehensive definition of "plan assets." Our task in this case is to determine the bounds of a statutory exclusion from "plan asset" categorization, an exclusion Congress prescribed for "guaranteed benefit polic[ies]."The question before us arises in the context of a contract between defendant-petitioner John Hancock Mutual Life Insurance Company (Hancock) and plaintiff-respondent Harris Trust and Savings Bank (Harris), current trustee of a Sperry Rand Corporation Retirement Plan.1 Pursuant to its contract with Harris, Hancock [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 2] receives deposits from the Sperry Plan. Harris asserts that Hancock is managing "plan assets," and therefore bears fiduciary responsibility. Hancock maintains that its undertaking fits within the statutory exclusion for "guaranteed benefit polic[ies]." "Guaranteed benefit policy" is not a trade term originating in the insurance industry; it is a statutory invention placed in ERISA and there defined as an insurance policy or contract that "provides for benefits the amount of which is guaranteed by the insurer." 88 Stat. 875, 29 U.S.C. 1101(b)(2)(B).The contract in suit is of a kind known in the trade as a "deposit administration contract" or "participating group annuity."2 Under a contract of this type, deposits to secure retiree benefits are not immediately applied to the purchase of annuities; instead, the deposits are commingled with the insurer's general corporate assets, and deposit account balances reflect the insurer's overall investment experience. During the life of the contract, however, amounts credited to the deposit account may be converted into a stream of guaranteed benefits for individual retirees.We granted certiorari___ (1993), to resolve a split among Courts of Appeals regarding the applicability of the guaranteed benefit policy exclusion to annuity contracts of the kind just described. The Second Circuit in the case we review held that the guaranteed benefit policy exclusion did not cover funds administered [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 3] by Hancock that bear no fixed rate of return and have not yet been converted into guaranteed benefits. 970 F.2d 1138, 1143-1144 (1992). We agree with the Second Circuit that ERISA's fiduciary obligations bind Hancock in its management of such funds, and accordingly affirm that court's judgment.IThe parties refer to the contract at issue as Group Annuity Contract No. 50 (GAC 50). Initially, GAC 50 was a simple deferred annuity contract under which Sperry purchased from Hancock individual deferred annuities, at rates fixed by the contract, for employees eligible under the Sperry Retirement Plan.Since its origination in 1941, however, GAC 50 has been transformed by amendments. By the time this litigation commenced, the contract included the following features. Assets and liabilities under GAC 50 were recorded (for bookkeeping purposes) in two accounts - the "Pension Administration Fund" recorded assets, and the "Liabilities of the Fund," liabilities. GAC 50 assets were not segregated, however; they were part of Hancock's pool of corporate funds, or general account, out of which Hancock pays its costs of operation and satisfies its obligations to policyholders and other creditors. See Agreed Statement of Facts §§ 11-19, App. 85-86; Brief for Petitioner 7-9; see also McGill & Grubbs 492 (describing general accounts); id., at 552 (describing asset allocation under deposit administration contracts). Hancock agreed to allocate to GAC 50's Pension Administration Fund a pro rata portion of the investment gains and losses attributable to Hancock's general account assets, Agreed Statement of Facts § 11, App. 85, and also guaranteed that the Pension Administration Fund would not fall below its January 1, 1968, level. Agreed Statement of Facts § 27, id., at 88. [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 4] GAC 50 provided for conversion of the Pension Administration Fund into retirement benefits for Sperry employees in this way. Upon request of the Sperry Plan Administrator, Hancock would guarantee full payment of all benefits to which a designated Sperry retiree was entitled; attendant liability would then be recorded by adding an amount, set by Hancock, to the Liabilities of the Fund.3 In the event that the added liability caused GAC 50's "Minimum Operating Level" - the Liabilities of the Fund plus a contingency cushion of five percent - to exceed the amount accumulated in the Pension Administration Fund, the "active" or "accumulation" phase of the contract would terminate automatically. In that event, Hancock would purchase annuities at rates stated in the contract to cover all benefits previously guaranteed by Hancock under GAC 50, and the contract itself would convert back to a simple deferred annuity contract. Agreed Statement of Facts §§ 33, 36-37, 42, id., at 89-91.As GAC 50 was administered, amounts recorded in the Pension Administration Fund were used to provide retirement benefits to Sperry employees in other ways. In this connection, the parties use the term "free funds" to describe the excess in the Pension Administration Fund over the Minimum Operating Level (105 percent of the amount needed to provide guaranteed benefits). In 1977, Sperry Plan trustee Harris obtained the right to direct Hancock to use the free funds to pay "non-guaranteed benefits" to retirees. These benefits were provided monthly on a pay-as-you-go basis; they were nonguaranteed in the sense that Hancock was obligated [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 5] to make payments only out of free funds, i.e., only when the balance in the Pension Administration Fund exceeded the Minimum Operating Level.Additionally, in 1979 and again in 1981, Hancock permitted Harris to transfer portions of the free funds pursuant to "rollover" procedures. Agreed Statement of Facts § 78, id., at 96. Finally, in 1988, a contract amendment allowed Harris to transfer over $50 million from the Pension Administration Fund without triggering the contract's "asset liquidation adjustment," a mechanism for converting the book value of the transferred assets to market value.While Harris in fact used these various methods to effect withdrawals from the Pension Administration Fund, Hancock maintains that only the original method - conversion of the Pension Administration Fund into guaranteed benefits - is currently within the scope of Harris' contract rights. In May, 1982 Hancock gave notice that it would no longer make nonguaranteed benefit payments. Agreed Statement of Facts §§ 82-87, id., at 97-98. And since 1981, Hancock has refused all requests by Harris to make transfers using "rollover" procedures. Agreed Statement of Facts § 79, id., at 96.Harris last exercised its right to convert Pension Administration Fund accumulations into guaranteed benefits in 1977. Agreed Statement of Facts § 81, id., at 97. Harris contends, and Hancock denies, that the conversion price has been inflated by incorporation of artificially low interest rate assumptions.One means remains by which Harris may gain access to GAC 50's free funds. Harris can demand transfer of those funds in their entirety out of the Pension Administration Fund. Harris has not taken that course, because it entails an asset liquidation adjustment Harris regards as undervaluing the Plan's share of Hancock's general account. In sum, nothing was removed from the Pension Administration Fund or converted into guaranteed [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 6] benefits between June 1982 and 1988. During that period, the free funds increased dramatically as a result of Hancock's continuing positive investment experience, the allocation of a portion of that experience to the Pension Administration Fund, and the absence of any offsetting increase in the Liabilities of the Fund for additional guaranteed benefits.Harris commenced this action in July, 1983, contending, inter alia, that Hancock breached its fiduciary obligations under ERISA by denying Harris any realistic means to make use of GAC 50's free funds. Hancock responded that ERISA's fiduciary standards do not apply, because GAC 50, in its entirety, "provides for benefits the amount of which is guaranteed by the insurer" within the meaning of the "guaranteed benefit policy" exclusion accorded by 29 U.S.C. 1101(b)(2)(B).In September, 1989, the District Court granted Hancock's motion for summary judgment on Harris' ERISA claims, holding that Hancock was not an ERISA fiduciary with respect to any portion of GAC 50. 722 F. Supp. 998 (SDNY 1989). The District Court thereafter dismissed Harris' remaining contract and tort claims. See 767 F. Supp. 1269 (1991). On appeal, the Second Circuit reversed in part. The Court of Appeals determined that, although Hancock "provides guarantees with respect to one portion of the benefits derived from [GAC 50], it does not do so at all times with respect to all the benefits derived from the other, or free funds, portion" of the contract. 970 F.2d, at 1143. The free funds "were not converted to fixed, guaranteed obligations, but instead were subject to fluctuation based on the insurer's investment performance." Id., at 1144. With respect to those free funds, the Second Circuit concluded, Hancock "provides no guarantee of benefit payments or fixed rates of return." Ibid. The Court of Appeals accordingly ruled that ERISA's fiduciary standards govern Hancock's management of the free funds, and it instructed the [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 7] District Court to determine whether those standards had been satisfied. Ibid.IIAIs Hancock a fiduciary with respect to any of the funds it administers under GAC 50? To answer that question, we examine first the language of the governing statute, guided not by "a single sentence or member of a sentence, but look[ing] to the provisions of the whole law, and to its object and policy." Pilot Life Ins. Co. v. Dedeaux, , quoting Kelly v. Robinson, (internal quotation marks omitted). The obligations of an ERISA fiduciary are described in 29 U.S.C. 1104(a): A fiduciary must discharge its duties with respect to a plan"solely in the interest of the participants and beneficiaries and - "(A) for the exclusive purpose of: "(i) providing benefits to participants and their beneficiaries... . A person is a fiduciary with respect to an employee benefit plan "to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets... ." 29 U.S.C. 1002(21)(A) (emphasis added). The "assets" of a plan are undefined except by exclusion in 1101(b)(2), which reads in relevant part:"In the case of a plan to which a guaranteed benefit [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 8] policy is issued by an insurer, the assets of such plan shall be deemed to include such policy, but shall not, solely by reason of the issuance of such policy, be deemed to include any assets of such insurer." A "guaranteed benefit policy," in turn, is defined as "an insurance policy or contract to the extent that such policy or contract provides for benefits the amount of which is guaranteed by the insurer. Such term includes any surplus in a separate account, but excludes any other portion of a separate account." 1101(b)(2)(B).4 Although these provisions are not mellifluous, read as a whole, their import is reasonably clear. To help fulfill ERISA's broadly protective purposes,5 Congress commodiously imposed fiduciary standards on persons whose actions affect the amount of benefits retirement plan participants will receive. See 29 U.S.C. 1002(21)(A) (defining as a fiduciary any person who "exercises any authority or control respecting management or disposition of [a plan's] assets"); H.R.Conf.Rep. No. 93-1280, p. 296 (1974) (the "fiduciary responsibility rules generally apply to all employee benefit plans ... in or affecting interstate commerce"). The guaranteed benefit [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 9] policy exclusion from ERISA's fiduciary regime6 is markedly confined: the deposits over which Hancock is exercising authority or control under GAC 50 must have been obtained "solely" by reason of the issuance of "an insurance policy or contract" that provides for benefits "the amount of which is guaranteed," and even then it is only "to the extent" that GAC 50 provides for such benefits that the 1101(b)(2)(B) exemption applies.In contrast, elsewhere in the statute Congress spoke without qualification. For example, Congress exempted from the definition of plan assets "any security" issued to a plan by a registered investment company. 29 U.S.C. 1101(b)(1) (emphasis added). Similarly, Congress exempted "any assets of ... an insurance company or any assets of a plan which are held by ... an insurance company" from the requirement that plan assets be held in trust. 29 U.S.C. 1103(b)(2) (emphasis added). Notably, the guaranteed benefit policy exemption is not available to "any" insurance contract that provides for guaranteed benefits, but only "to the extent that" the contract does so. See Comment, Insurers Beware: General Account Activities May Subject Insurance Companies to ERISA's Fiduciary Obligations, (to be published in 88 Nw.U.L.Rev. (1994)). Thus, even were we not inclined, generally, to tight reading of exemptions from comprehensive schemes of this kind, see, e.g., Commissioner v. Clark, (when a general policy is qualified by an exception, the Court "usually read[s] the exception narrowly in order to preserve the primary operation of the [policy]"), A. H. Phillips, Inc. v. Walling, (cautioning against extending exemptions "to other than those plainly and unmistakably within its [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 10] terms"), Congress has specifically instructed, by the words of limitation it used, that we closely contain the guaranteed benefit policy exclusion.BHancock, joined by some amici, raises a threshold objection. ERISA's fiduciary standards cannot govern an insurer's administration of general account contracts, Hancock asserts, for that would pose irreconcilable conflicts between state and federal regulatory regimes. ERISA requires fiduciaries to act "solely in the interest of the participants and beneficiaries and ... for the exclusive purpose of ... providing benefits to participants and beneficiaries." 29 U.S.C. 1104(a) (emphasis added). State law, however, requires an insurer, in managing general account assets, "to consider the interests of all of its contractholders, creditors and shareholders," and to "maintain equity among its various constituencies." Goldberg & Altman 477.7 To head off conflicts, Hancock contends, ERISA must yield, because Congress reserved to the States primary responsibility for regulation of the insurance industry. We are satisfied that Congress did not order the unqualified deferral to state law that Hancock both advocates and attributes to the federal lawmakers. Instead, we hold, ERISA leaves room for complementary or dual federal and state regulation, and calls for federal supremacy when the two regimes cannot be harmonized or accommodated.To support its contention, Hancock refers first to the [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 11] McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. 1011 et seq., which provides: "The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation ... of such business." 15 U.S.C. 1012(a). "No Act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance... ." 1012(b). But as the United States points out, "ERISA, both in general and in the guaranteed benefit policy provision in particular, obviously and specifically relates to the business of insurance." Brief for United States as Amicus Curiae 23, n. 13.8 Thus, the McCarran-Ferguson Act does not surrender regulation exclusively to the States so as to preclude the application of ERISA to an insurer's actions under a general account contract. See ibid.More problematic are two clauses in ERISA itself, one broadly providing for preemption of state law, the other preserving, or saving from preemption, state laws regulating insurance. ERISA's encompassing preemption clause directs that the statute "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." 29 U.S.C. 1144(a). The "saving clause," however, instructs that ERISA "shall [not] be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." 1144(b)(2)(A). [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 12] State laws concerning an insurer's management of general account assets can "relate to [an] employee benefit plan," and thus fall under the preemption clause, but they are also, in the words of the saving clause, laws "which regulate[] insurance."ERISA's preemption and saving clauses "`are not a model of legislative drafting,'" Pilot Life, 481 U.S., at 46, quoting Metropolitan Life Ins. Co. v. Massachusetts, , and the legislative history of these provisions is sparse. See id., at 745-746. In accord with the District Court in this case, however, see 722 F. Supp., at 1003-1004, we discern no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional preemption analysis. State law governing insurance generally is not displaced, but "where [that] law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress," federal preemption occurs. Silkwood v. Kerr-McGee Corp., .9 We note in this regard that even Hancock does not ascribe a discrete office to the "saving clause," but instead asserts that the clause "reaffirm[s] the McCarran-Ferguson Act's reservation of the business of insurance to the States." Brief for Petitioner 31; see Metropolitan Life, supra, at 744, n. 21 (saving clause "appears to have been designed to preserve the McCarran-Ferguson Act's reservation of the business of insurance to the States"; saving clause and McCarran-Ferguson Act "serve the same federal policy and utilize similar language"). As the United States recognizes, "dual [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 13] regulation under ERISA and state law is not an impossibility[;] [m]any requirements are complementary, and in the case of a direct conflict, federal supremacy principles require that state law yield." Brief for United States as Amicus Curiae 23, n. 13.10 In resisting the argument that, with respect to general account contracts, state law, not federal law, is preemptive, we are mindful that Congress had before it, but failed to pass, just such a scheme. The Senate's proposed version of ERISA would have excluded all general account assets from the reach of the fiduciary rules.11 Instead of enacting the Senate draft, which would indeed have "settled [insurance industry] expectations," see post, at 1, Congress adopted an exemption [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 14] containing words of limitation. We are directed by those words, and not by the discarded draft. Cf. Russello v. United States, (when Congress deletes limiting language, "it may be presumed that the limitation was not intended").12 Persuaded that a plan's deposits are not shielded from the reach of ERISA's fiduciary prescriptions solely by virtue of their placement in an insurer's general account, we proceed to the question the Second Circuit decided: is Hancock an ERISA fiduciary with respect to the free funds it holds under GAC 50?CTo determine GAC 50's qualification for ERISA's guaranteed benefit policy exclusion, we follow the Seventh Circuit's lead, see Peoria Union Stock Yards Co. Retirement Plan v. Penn Mutual Life Ins. Co., 698 F.2d 320, 324-327 (1983), and seek guidance from this Court's decisions construing the insurance policy exemption ordered in the Securities Act of 1933. See 48 Stat. 75, 15 U.S.C. 77c(a)(8) (excluding from the reach of the Securities Act "[a]ny insurance or endowment policy or annuity contract or optional annuity contract").In SEC v. Variable Annuity Life Ins. Co. of America, , we observed that "... the concept of `insurance' entails some investment risk-taking on the part of the company," and "involves a guarantee that at least some fraction of the benefits will be payable in fixed amounts." Id., at 71. A variable annuity, we [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 15] held, is not an "insurance policy" within the meaning of the statutory exemption, because the contract's entire investment risk remains with the policyholder inasmuch as "benefit payments vary with the success of the [insurer's] investment policy," id., at 69, and may be "greater or less, depending on the wisdom of [that] policy." Id., at 70.Thereafter, in SEC v. United Benefit Life Ins. Co., , we held that an annuity contract could be considered a nonexempt investment contract during the contract's accumulation phase, and an exempt insurance contract once contractually guaranteed fixed payouts began. Under the contract there at issue, the policyholder paid fixed monthly premiums which the issuer placed in a fund - called the "Flexible Fund" - invested by the issuer primarily in common stocks. At contract maturity, the policyholder could either withdraw the cash value of his proportionate share of the fund (which the issuer guaranteed would not fall below a specified value), or convert to a fixed benefit annuity, with payment amounts determined by the cash value of the policy. During the accumulation phase, the fund from which the policyholder would ultimately receive benefits fluctuated in value according to the insurer's investment results; because the "insurer promises to serve as an investment agency and allow the policyholder to share in its investment experience," id., at 208, this phase of the contract was serving primarily an investment, rather than an insurance, function. Ibid.The same approach - division of the contract into its component parts and examination of risk allocation in each component - appears well-suited to the matter at hand, because ERISA instructs that the 1101(b)(2)(B) exemption applies only "to the extent that" a policy or contract provides for "benefits the amount of which is guaranteed." Analyzing GAC 50 this way, we find that [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 16] the contract fits the statutory exclusion only in part.This much is not in dispute. During the contract's active, accumulation phase, any benefits payable by Hancock for which entries actually have been made in the Liabilities of the Fund fit squarely within the "guaranteed" category. Furthermore, if the active phase of the contract were to end, all benefits thereafter payable under the contract would be guaranteed in amount. To this extent also, GAC 50 "provides for benefits the amount of which is guaranteed."We turn, then, to the nub of the controversy, Hancock's responsibility for administration of the free funds during GAC 50's active phase. Between 1977 and 1982, we note first, GAC 50 furnished retirement benefits expressly called "nonguaranteed"; those benefits, it is undisputed, entailed no "amount ... guaranteed by the insurer." 29 U.S.C. 1101(b)(2)(B); see supra, at 4-5. To that extent, GAC 50 does not fall within the statutory exemption. But the nonguaranteed benefit option is not the only misfit.GAC 50, in key respects, is similar to the Flexible Fund contract examined in United Benefit. In that case, as in this one, the contract's aggregate value depended upon the insurer's success as an investment manager. Under both contracts, until the occurrence of a triggering event - contract maturity in the Flexible Fund case, Harris' exercise of its conversion option in the case of GAC 50 - the investment risk is borne primarily by the contractholder. Confronting a contract bearing similar features, the Seventh Circuit stated:"The pension trustees did not buy an insurance contract with a fixed payout; they turned over the assets of the pension plan to [the insurer] to manage with full investment discretion, subject only to a modest income guaranty. If the pension plan had hired an investment advisor and given him the authority to buy and sell securities at his discretion [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 17] for the plan's account, the advisor would be a fiduciary within the meaning of [ERISA], and that is essentially what the trustees did during the accumulation phase of th[is] contract ... ." Peoria Union, 698 F.2d, at 327. In the Second Circuit's words, "[t]o the extent that [Hancock] engages in the discretionary management of assets attributable to that phase of the contract which provides no guarantee of benefit payments or fixed rates of return, it seems to us that [Hancock] should be subject to fiduciary responsibility." 970 F.2d, at 1144.Hancock urges that to the full extent of the free funds - and hence, to the full extent of the contract - GAC 50 "provides for" benefits the amount of which is guaranteed, inasmuch as "Harris Trust ... has the right ... to use any "free funds" to purchase future guaranteed benefits under the contract, in addition to benefits previously guaranteed." Brief for Petitioner 26; see also Mack Boring & Parts v. Meeker Sharkey Moffitt, Actuarial Consultants of New Jersey, 930 F.2d 267, 273 (CA3 1991) (statute's use of phrase "provides for" does not require that the benefits contracted for be delivered immediately; it is enough that the contract provides for guaranteed benefits "at some finite point in the future").Logically pursued, Hancock's reading of the statute would exempt from ERISA's fiduciary regime any contract, in its entirety, so long as the funds held thereunder could be used at some point in the future to purchase some amount of guaranteed benefits.13 But Congress [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 18] did not say a contract is exempt "if" it provides for guaranteed benefits; it said a contract is exempt only "to the extent" it so provides. Using these words of limitation, Congress apparently recognized that contracts may provide to some extent for something other than guaranteed benefits, and expressly declared the exemption unavailable to that extent.Tellingly with respect to GAC 50, the Pension Administration Fund is guaranteed only against a decline below its January 1, 1968 level. See supra, at 3. Harris thus bears a substantial portion of the risk as to fluctuations in the free funds, and there is not even the "modest income guaranty" the Seventh Circuit found insufficient in Peoria Union. 698 F.2d, at 327. Furthermore, Hancock has the authority to set the price at which free funds are convertible into guaranteed benefits. See supra, at 4, n. 3. In combination, these features provide no genuine guarantee of the amount of benefits that Plan participants will receive in the future.It is true but irrelevant, Hancock pleads, that GAC 50 provides no guaranteed return to the Plan, for ERISA uniformly uses the word "benefits" to refer exclusively to payments to plan participants or beneficiaries, not payments to plans. Brief for Petitioner 25; see also Mack Boring, 930 F.2d, at 273 ("benefits" refers only to payments to participants or beneficiaries; payments to plan sponsors can be variable without defeating guaranteed benefit exclusion); Goldberg & Altman 482. This confinement of the word "benefits," however, perfectly fits the tight compass of the exclusion. A contract component [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 19] that provides for something other than guaranteed payments to plan participants or beneficiaries - e.g., a guaranteed return to the plan - does not, without more, provide for guaranteed benefits, and thus does not fall within the statutory exclusion. Moreover, the guaranteed benefit policy exclusion requires a guarantee of the amount of benefits to be provided; with no guaranteed investment return to the Plan, and no guarantee regarding conversion price, plan participants are undeniably at risk inasmuch as the future amount of benefits - payments to participants and beneficiaries - attributable to the free funds can fall to zero. But see post, at 8, n. 4 (contending that the plan's guarantee renders immaterial the absence of a guarantee by the insurer). A contract of that order does not meet the statutory prescription.In sum, we hold that, to determine whether a contract qualifies as a guaranteed benefit policy, each component of the contract bears examination. A component fits within the guaranteed benefit policy exclusion only if it allocates investment risk to the insurer. Such an allocation is present when the insurer provides a genuine guarantee of an aggregate amount of benefits payable to retirement plan participants and their beneficiaries. As to a contract's "free funds" - funds in excess of those that have been converted into guaranteed benefits - these indicators are key: the insurer's guarantee of a reasonable rate of return on those funds and the provision of a mechanism to convert the funds into guaranteed benefits at rates set by the contract. While another contract, with a different mix of features, might satisfy these requirements, GAC 50 does not. Indeed, Hancock provided no real guarantee that benefits in any amount would be payable from the free funds. We therefore conclude, as did the Second Circuit, that the free funds are "plan assets," and that Hancock's actions in regard to their management and disposition must be [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 20] judged against ERISA's fiduciary standards.IIIOne other contention pressed by Hancock and amici deserves consideration. Hancock, supported by the United States, asserts that the Department of Labor has adhered consistently to the view that ERISA's fiduciary obligations do not apply in relation to assets held by an insurer in its general account under contracts like GAC 50.14 Hancock urges us to follow this view based on "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Brief for Petitioner 39, quoting Skidmore v. Swift & Co., ; see also Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., .Hancock and the United States place primary reliance on an early interpretive bulletin in which the Department of Labor stated:"If an insurance company issues a contract or policy of insurance to a plan and places the consideration for such contract or policy in its general asset account, the assets in such account shall not be considered to be plan assets. Therefore, a subsequent transaction involving the general asset account between a party in interest and the insurance company will not, solely because the plan has been issued such a contract or policy of insurance, be a prohibited transaction." Interpretive Bulletin 75-2, [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 21] 40 Fed.Reg. 31598 (1975), 29 CFR 2509.75-2(b) (1992). If this passage squarely addressed the question we confront, namely, whether ERISA's fiduciary standards apply to assets held under participating annuity contracts like GAC 50, we would indeed have a clear statement of the Department's view on the matter at issue. But, as the second sentence of the quoted passage shows, the question addressed in Interpretive Bulletin 75-2 was "whether a party in interest has engaged in a prohibited transaction [under 29 U.S.C. 1106] with an employee benefit plan." 2509.75-2.15 The Department did not mention, let alone elaborate on, any grounding for Interpretive Bulletin 75-2 in 1101's guaranteed benefit policy exemption, nor did the Bulletin speak of the application of its pronouncement, if any, to ERISA's fiduciary duty prescriptions.The Department asserts the absence of any textual basis for the view, adopted by the Second Circuit, that "certain assets [can be considered] plan assets for general fiduciary duty purposes but not for prohibited transaction purposes," 970 F.2d, at 1145, and, accordingly, no reason to suppose that Interpretive Bulletin 75-2's statement regarding plan assets would not apply in both contexts. See Brief for United States as Amicus Curiae 26-27. Nothing in Interpretive Bulletin 75-2 or 29 CFR 2509.75-2 (1992), however, sets forth that position, or otherwise alerts the reader that more than the prohibited transaction exemption was then subject to the Department's scrutiny.16 Had the Department intended [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 22] Interpretive Bulletin 75-2 to apply to the guaranteed benefit policy exclusion, it would have had to explain how an unqualified exclusion for an insurer's general asset account can be reconciled with Congress' choice of a more limited ("to the extent that") formulation. Its silence in that regard is an additional indication that the 1975 pronouncement did not originally have the scope the Department now attributes to it.17 We note, too, that the United States was unable to comply with the Second Circuit's request for its assistance in this very case; the Department of Labor informed the Court of Appeals, after requesting and receiving a substantial extension of time, that "the need to fully consider all of the implications of the issues within the Department precludes our providing the Court with a brief within a foreseeable time frame." 970 F.2d, at 1140-1141. We recognize the difficulties the Department faced, given the complexity of ERISA and the constant evolution of insurance contract practices as reflected in this case. Our point is simply that, as of 1992, the Department apparently had no firm position it was prepared to communicate. [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 23] We need not grapple here with the difficult question of the deference due an agency view first precisely stated in a brief supporting a petitioner. Cf. Estate of Cowart v. Nicklos Drilling Co.___, ___, (1992) (slip op., at 6-7) ("If the Director asked us to defer to his new statutory interpretation, this case might present a difficult question regarding whether and under what circumstances deference is due to an interpretation formulated during litigation.") (emphasis in original). It suffices to recall, once again, Congress' words of limitation. The legislature provided an exemption "to the extent that" a contract provides for guaranteed benefits. By reading the words "to the extent" to mean nothing more than "if," the Department has exceeded the scope of available ambiguity. See Public Employees Retirement System of Ohio v. Betts, ("no deference is due to agency interpretations at odds with the plain language of the statute itself"). We therefore cannot accept current pleas for the deference described in Skidmore or Chevron.The Department of Labor recognizes that ranking free funds as "plan assets" would secure "added legal protections against losses by pension plans, because ERISA imposes restrictions not currently provided by contract and insurance law." Brief for United States as Amicus Curiae 25-26. But the Department warns that"the disruptions and costs [of holding insurance companies to be fiduciaries under participating group annuity contracts] would be significant, both in terms of the administrative changes the companies would be forced to undertake (e.g., segregation of plan-related assets into segmented or separate accounts, and reallocation of operating costs to other policyholders) and in terms of the considerable exposure to the ensuing litigation that would be brought by pension plans and others alleging fiduciary [ JOHN HANCOCK MUT. LIFE INS. CO. v. HARRIS TRUST, ___ U.S. ___ (1993), 24] breaches. Id., at 25. These are substantial concerns, but we cannot give them dispositive weight. The insurers' views have been presented to Congress,18 and that body can adjust the statute. See Burnet v. Coronado Oil & Gas Co. (Brandeis, J., dissenting); Di Santo v. Pennsylvania (Brandeis, J., dissenting). Furthermore, the Department of Labor can provide administrative relief to facilitate insurers' compliance with the law, thereby reducing the disruptions it forecasts. * * * For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is Affirmed. |
7 | Respondent, which holds patents for plastic cable ties, sued petitioner in Federal District Court for infringement, and petitioner defended on the ground that the patents were invalid for obviousness. After examining the prior art, identifying the differences between it and the patents at issue, and ultimately concluding that all of the improvements made by the patents over the prior art would have been obvious to one skilled in that art, the court held that respondent's patents were invalid for obviousness. The Court of Appeals reversed, disagreeing with the District Court's assessment of the prior art, and ruling that the references cited by the District Court did not teach the innovations introduced by respondent. Petitioner contends that the Court of Appeals improperly ignored Federal Rule of Civil Procedure 52(a) in substituting its view of factual issues for that of the District Court.Held: Regardless of whether the ultimate question of obviousness is one of fact subject to the clearly-erroneous standard of Rule 52(a), the District Court's subsidiary determinations, at the least, are subject to the Rule. The Court of Appeals, however, did not mention the Rule, did not explicitly apply the clearly-erroneous standard to any of the District Court's findings on obviousness, and did not explain why, if it was of that view, the Rule had no applicability to the issue of obviousness. In the absence of an opinion clearly setting forth the Court of Appeals' views on such matters, plenary consideration will not be given here to petitioner's claim that the decision below cannot be squared with the Rule. Instead, the Court of Appeals' judgment is vacated, and the case is remanded to that court for further consideration in light of the Rule. Certiorari granted; 774 F.2d 1082, vacated and remanded.PER CURIAM.Respondent holds three patents for plastic cable ties, products that are commercially successful. Petitioner copied respondent's products, was sued for patent infringement in the Northern District of Illinois, and defended on the ground that the patents were invalid for obviousness. The trial judge examined the prior art, identified the differences between the prior art and each of the three patents at issue, and concluded that all of the improvements made by the three patents over the prior art would have been obvious to one skilled in that art. In the course of arriving at this conclusion, the trial judge recognized that the presumption of patent validity must be overcome by clear and convincing evidence, that the patents' commercial success and the failure of competitors to develop equally successful inventions were important factors weighing in favor of the validity of the patents, and that in addressing the question of obviousness a judge must not pick and choose isolated elements from the prior art and combine them so as to yield the invention in question if such a combination would not have been obvious at the time of the invention. Nonetheless, the judge found that respondent's patents were invalid for obviousness.The Court of Appeals for the Federal Circuit reversed. 774 F.2d 1082 (1985). The court disagreed with the District Court's assessment of the prior art, ruled that the references cited by the District Court did not teach the innovations introduced by respondent, and referred to other errors made by the District Court.Petitioner contends that the Federal Circuit ignored Federal Rule of Civil Procedure 52(a) in substituting its view of factual issues for that of the District Court. In particular, petitioner complains of the rejection of the District Court's determination of what the prior art revealed and its findings that the differences identified between respondent's patents and the prior art were obvious.Petitioner's claims are not insubstantial. As this Court observed in Graham v. John Deere Co., :"While the ultimate question of patent validity is one of law, ... the 103 condition [that is, nonobviousness] ... lends itself to several basic factual inquiries. Under 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unresolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. As indicia of obviousness or nonobviousness, these inquiries may have relevancy." This description of the obviousness inquiry makes it clear that whether or not the ultimate question of obviousness is a question of fact subject to Rule 52(a), the subsidiary determinations of the District Court, at the least, ought to be subject to the Rule.The Federal Circuit, however, did not mention Rule 52(a), did not explicitly apply the clearly-erroneous standard to any of the District Court's findings on obviousness, and did not explain why, if it was of that view, Rule 52(a) had no applicability to this issue. We therefore lack an adequate explanation of the basis for the Court of Appeals' judgment: most importantly, we lack the benefit of the Federal Circuit's informed opinion on the complex issue of the degree to which the obviousness determination is one of fact. In the absence of an opinion clearly setting forth the views of the Court of Appeals on these matters, we are not prepared to give plenary consideration to petitioner's claim that the decision below cannot be squared with Rule 52(a). Instead, we grant the petition for certiorari, vacate the judgment, and remand the case to the Court of Appeals for further consideration in light of Rule 52(a). It is so ordered. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Cuyahoga Valley R. Co. v. United Transportation Union, (MARSHALL, J., dissenting); Maggio v. Fulford, (MARSHALL, J., dissenting). |
7 | The Railroad Revitalization and Regulatory Reform Act of 1976, in relevant part, forbids States to impose (1) higher property tax rates and assessment ratios upon "rail transportation property" than upon "other commercial and industrial property," 49 U.S.C. 11503(b)(1)-(3), and (2) "another tax that discriminates against a rail carrier providing transportation," 11503(b)(4). Oregon exempts from its ad valorem property tax various classes of business personal property, but not railroad cars owned by respondent companies. They filed suit in the District Court, alleging that the tax violates 11503(b)(4) because it exempts certain classes of commercial property from taxation while taxing railroad cars in full. Both the District Court and the Court of Appeals agreed that discriminatory property tax exemptions may be challenged under subsection (b)(4). However, the Court of Appeals reversed the lower court's finding that Oregon's tax complied with the provision, holding instead that respondents were entitled to the same exemption enjoyed by preferred property owners.Held: Section 11503 does not limit the States' discretion to exempt non-railroad property, but not railroad property, from generally applicable ad valorem property taxes. Pp. 5-15. (a) Respondents' position that "another tax that discriminates against a rail carrier" is a residual category designed to reach any discriminatory state tax, including property taxes, not covered by subsections (b)(1)-(3) is plausible only if subsection (b)(4) is read in isolation. However, the structure of 11503 as a whole supports the view that subsection (b)(4) does not speak to property tax exemptions. "[C]ommercial and industrial property," which serves Page II as the comparison class for measuring property tax discrimination under subsections (b)(1)-(3), is defined in subsection (a)(4) as "property, other than transportation property and land used primarily for agricultural purposes or timber growing, devoted to commercial or industrial use and subject to a property tax levy." The interplay between subsections (b)(1)-(3) and this definition is central to subsection (b)(4)'s interpretation. For example, Congress' exclusion of agricultural land from the definition demonstrates its intent to permit the States to tax railroad property at a higher rate than agricultural land, notwithstanding subsection (b)(3)'s general prohibition of rate discrimination. To consider such a tax "another tax" under subsection (b)(4) would subvert the statutory plan by reading subsection (b)(4) to prohibit what subsection (b)(3), in conjunction with subsection (a)(4), was designed to allow. The result would contravene the elemental canon of construction that a statute should be interpreted so as not to render one part inoperative. Pp. 5-7. (b) The phrase "subject to a property tax levy" further qualifies the subsection (a)(4) definition. When used elsewhere in 11503, that phrase means property that is taxed; and since identical words used in different parts of the same Act are intended to have the same meaning, the phrase must carry the same meaning in subsection (a)(4), Sorenson v. Secretary of Treasury, . Thus, exempt property is not part of the comparison class. It would be illogical to conclude that Congress, having allowed States to grant property tax exemptions in subsections (b)(1)-(3), would turn around and nullify its own choice in subsection (b)(4). Pp. 7-9. (c) Other considerations reinforce the foregoing construction of the statute. Section 11503's silence on the subject of tax exemptions - in light of the explicit prohibition of tax rate and assessment ratio discrimination - reflects a determination to permit the States to leave their exemptions in place. Principles of federalism compel this view, for a statute is interpreted to preempt traditional state powers only if that result is the clear and manifest purpose of Congress. The statute's legislative history casts no doubt upon this interpretation. Nor does the interpretation lead to an anomalous result. Since railroads are not the only commercial entities subject to Oregon's tax, it need not be decided whether subsection (b)(4) would prohibit a tax that did single out railroad property. And since it is within Congress' sound discretion to weigh the benefit of preserving some exemptions against the benefit of protecting rail carriers from every tax scheme that favors some non-railroad property, the result reached here is not so Page III bizarre that Congress could not have intended it. See Demarest v. Manspeaker, . Pp. 10-14. 961 F.2d 813, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion. [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 1] JUSTICE KENNEDY delivered the opinion of the Court.The power of state and local governments to impose ad valorem property taxes upon railroads and other interstate carriers has been the source of recurrent litigation under the Commerce Clause and the Due Process Clause. See, e.g., Central R. Co. v. Pennsylvania, ; Braniff Airways, Inc. v. Nebraska Bd. of Equalization and Assessment, ; Morgan v. Parham, 16 Wall. 471 (1873). In the case before us, a state property tax is challenged under a federal statute, the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act). Pub. L. 94-210, 90 Stat. 31.The question presented is whether the State of Oregon violated the statute by imposing an ad valorem tax upon railroad property while exempting various other, but not all, classes of commercial and industrial property. We hold that a State may grant exemptions from a generally applicable ad valorem property tax without subjecting the taxation of railroad property to challenge under the relevant provision of the 4-R Act, 306(1)(d), 49 U.S.C. 11503(b)(4).IOregon imposes an ad valorem tax upon all real and personal property within its jurisdiction, except property [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 2] granted an express exemption. Ore.Rev.Stat. 307.030 (1991). Various classes of business personal property are exempt, including agricultural machinery and equipment; nonfarm business inventories; livestock; poultry; bees; fur-bearing animals; and agricultural products in the possession of farmers. 307.325, 307.400. Standing timber is also exempt, but is subject to a severance tax when harvested. 321.272. Oregon, like many other States, exempts motor vehicles as well, instead levying upon them a modest annual registration fee. 803.585, 803.420(1).Respondents, called the "Carlines" in this litigation, are eight companies that lease railroad cars to railroads and shippers. The railroad cars are considered "tangible personal property" under Oregon law, 307.030, and are not exempt from taxation. The Carlines brought suit in United States District Court under 306(1)(d) of the 4-R Act, seeking declaratory and injunctive relief against the assessment, levy, and collection of the State's property tax upon their railroad cars.Congress enacted the 4-R Act in part to "restore the financial stability of the railway system of the United States." 101(a), 90 Stat. 33. When drafting the legislation, Congress was aware that the railroads "`are easy prey for State and local tax assessors" in that they are "nonvoting, often nonresident, targets for local taxation," who cannot easily remove themselves from the locality." Western Air Lines, Inc. v. Board of Equalization, (quoting S. Rep. No. 91-630, p. 3 (1969)). Section 306 of the 4-R Act, now codified at 49 U.S.C. 11503, addresses this concern by prohibiting the States (and their subdivisions) from enacting certain taxation schemes that discriminate against railroads. See Burlington Northern R. Co. v. Oklahoma Tax Comm'n, .The relevant provisions of 11503 are contained in subsection (b), which states: [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 3] "The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: "(1) assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property. "(2) levy or collect a tax on an assessment that may not be made under clause (1) of this subsection. "(3) levy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction. "(4) impose another tax that discriminates against a rail carrier providing transportation... ." The reach of subsections (b)(1)-(3) is straightforward: these provisions forbid the imposition of higher assessment ratios or tax rates upon rail transportation property than upon "other commercial and industrial property." The scope of subsection (b)(4), which forbids the imposition of "another tax that discriminates against a rail carrier providing transportation," is not as clear.The Carlines do not challenge Oregon's ad valorem property tax under subsections (b)(1)-(3). We attribute this choice to the fact that the State subjects all nonexempt property "to assessment and taxation in equal and ratable proportion." Ore.Rev.Stat. 307.030 (1991). Rather, it is the Carlines' contention that Oregon's tax should be considered "another tax that discriminates against a rail carrier," in violation of subsection (b)(4), because it exempts certain classes of [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 4] commercial and industrial property while taxing railroad cars in full.The District Court, after reviewing a stipulated record, held that discriminatory property tax exemptions are subject to challenge under subsection (b)(4). On the facts presented, however, the court determined that Oregon's ad valorem property tax complied with the provision. The court observed that, in other cases, only those state taxes exempting more than 50% of non-railroad commercial personal property had been found to contravene paragraph (b)(4). See Trailer Train Co. v. Leuenberger, 885 F.2d 415 (CA8 1988), cert. denied, ; Burlington Northern R. Co. v. Bair, 766 F.2d 1222 (CA8 1985). Because (according to the court's calculations) Oregon exempted only 31.4% of non-railroad commercial personal property from taxation, the court granted judgment to the State.The Court of Appeals reversed. 961 F.2d 813 (1992). In accordance with Circuit precedent, see ACF Industries, Inc. v. Arizona, 714 F.2d 93, 94 (CA9 1983), the court acknowledged that subsections (b)(1)-(3) do not speak to the question of discriminatory property tax exemptions. Like the District Court, however, the Court of Appeals accepted the Carlines' contention that property tax exemptions are subject to challenge under subsection (b)(4). The court explained that Congress enacted 11503 to "`prevent tax discrimination against railroads in any form whatsoever.'" 961 F.2d, at 820 (emphasis in original) (citing Ogilvie v. State Bd. of Equalization of N.D., 657 F.2d 204, 210 (CA8), cert. denied, ).Rejecting the District Court's apparent view that ad valorem tax schemes exempting less than 50% of non-railroad business property are not proscribed by subsection (b)(4), the Court of Appeals held that the "most natural reading" of the provision dictates that "any exemption given to other taxpayers but not to railroads" [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 5] is forbidden, with possible room for "a de minimis level of exemption[s]." 961 F.2d, at 822 (emphasis in original). The court found that Oregon's property tax, under the calculation most generous to the State, exempted 25% of non-railroad commercial property, far exceeding any possible de minimis exception. On this ground, the court concluded that the State's taxation of railroad property violated subsection (b)(4). Id., at 823. Holding that the Carlines "were entitled to the same total exemption preferred property owners enjoyed," the court enjoined the State from levying any tax upon the Carlines' railroad property. Ibid.We granted certiorari___ (1993), and now reverse.IIBefore passing upon the validity of Oregon's ad valorem property tax under 11503(b)(4), the Court of Appeals and the District Court addressed a preliminary question: whether a tax upon railroad property is even subject to challenge under subsection (b)(4) on the ground that certain other classes of commercial and industrial property are exempt. We consider the same question.Both parties contend that the plain meaning of subsection (b)(4), which prohibits "another tax that discriminates against a rail carrier," dictates an answer in their favor. In the State's view, the word "another" means "different from that which precedes it." Because subsections (b)(1)-(3) address property taxes and only property taxes, it follows that the term "another tax" in subsection (b)(4) must mean "a tax different from a property tax." The State concludes that subsection (b)(4) does not speak to discriminatory property tax exemptions for the simple reason that the provision does not speak to property taxes at all.The Carlines, like the Court of Appeals, take a different view. They understand the phrase "another tax [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 6] that discriminates against a rail carrier" to be a residual category designed to reach any discriminatory state tax, including discriminatory property taxes, not covered by subsections (b)(1)-(3). It follows that property tax exemptions disfavoring railroad transportation property - exemptions the Carlines in effect admit fall outside the scope of paragraphs (b)(1)-(3), see Brief for Respondents 16-17 - are within the ambit of subsection (b)(4). Accord, e.g., Trailer Train Co. v. Leuenberger, 885 F.2d 415, 417-418 (CA8 1988), cert. denied, ; Department of Revenue of Fla. v. Trailer Train Co., 830 F.2d 1567, 1573 (CA11 1987). If Congress had intended to exclude property taxes from the reach of (b)(4), the Carlines contend, it would have drafted the provision to prohibit "any tax other than a property tax," and not phrased the statute as it did. Brief for Respondents 17.Both the State's and the Carlines' readings are defensible if subsection (b)(4) is read in isolation, cf. Burlington Northern R. Co. v. Oklahoma Tax Comm'nat 461 (language of subsection (b)(1) "plainly declares [its] purpose"), and so we must look elsewhere to determine its meaning. The structure of 11503 as a whole does yield an answer, one adverse to the Carlines' challenge to Oregon's property tax. We conclude that a State may grant exemptions from a generally applicable ad valorem property tax without exposing the taxation of railroad property to invalidation under subsection (b)(4).Subsections (b)(1)-(3) of 11503, as noted, forbid the imposition of higher property tax rates and assessment ratios upon "rail transportation property" than upon "other commercial and industrial property." 49 U.S.C. 11503(b)(1)-(3). "Commercial and industrial property," which serves as the comparison class for measuring unlawful discrimination under those provisions, is defined as "property, other than transportation property [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 7] and land used primarily for agricultural purposes or timber growing, devoted to a commercial or industrial use and subject to a property tax levy." 11503(a)(4).The interplay between subsections (b)(1)-(3) and the definition of "commercial and industrial property" in subsection (a)(4) is central to the interpretation of subsection (b)(4). For example, the definition of "commercial and industrial property" excludes "land used primarily for agricultural purposes." The fact that Congress made this particular exclusion demonstrates its intent to permit the States to tax railroad property at a higher rate than agricultural land, notwithstanding subsection (b)(3)'s general prohibition of rate discrimination. One still could maintain, we suppose, that taxing railroad property at a higher rate than agricultural land should be considered "another tax that discriminates against a rail carrier," and thus forbidden under subsection (b)(4). That interpretation, however, would subvert the statutory plan by reading subsection (b)(4) to prohibit what subsection (b)(3), in conjunction with subsection (a)(4), was designed to allow. The result would contravene the "elementary canon of construction that a statute should be interpreted so as not to render one part inoperative." Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, (internal quotation marks omitted).Congress qualified the definition of "commercial and industrial property" further, limiting the comparison class to property "subject to a property tax levy." 49 U.S.C. 11503(a)(4). The statute does not define this phrase, which, on its face, could bear one of two interpretations: (1) taxed property; or (2) taxable property, a broader category consisting of the general mass of property within the State's jurisdiction and power to tax, including property that enjoys a current exemption.The first interpretation has been the subject of some criticism, see Western Air Lines, Inc. v. Board of Equalization [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 8] of S. D., (White, J., concurring),* but we believe it follows from the way Congress used identical language elsewhere in 11503. Section 11503(c) confers jurisdiction upon United States district courts to enforce the terms of 11503(b) despite the bar otherwise imposed by the Tax Injunction Act, 28 U.S.C. 1341. Subsection (c)(1) grants district courts the power (under certain circumstances not pertinent here) to prohibit"an assessment of the rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the assessed value of all other property subject to a property tax levy in the assessment jurisdiction has [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 9] to the true market value of all other commercial and industrial property." (Emphasis supplied.) In the context of this provision, which concerns the differential assessment of taxed property, the words "property subject to a property tax levy" must mean "taxed property." Given the "normal rule of statutory construction" that "`"identical words used in different parts of the same act are intended to have the same meaning,"'" Sorenson v. Secretary of Treasury, (quoting Helvering v. Stockholms Enskilda Bank (quoting Atlantic Cleaners & Dryers, Inc. v. United States)), that phrase must carry the same meaning in subsection (a)(4), where it qualifies the definition of "commercial and industrial property."All this bears on the case before us. Because property "subject to a property tax levy" means property that is taxed, the definition of "commercial and industrial property" excludes property that is exempt. Exempt property, then, is not part of the comparison class against which discrimination is measured under subsections (b)(1)-(3), and it follows that railroads may not challenge property tax exemptions under those provisions.As was the case with agricultural land, we must pay heed to the fact that Congress placed exempt property beyond the reach of subsections (b)(1)-(3). It would be illogical to conclude that Congress, having allowed the States to grant property tax exemptions in subsections (b)(1)-(3), would turn around and nullify its own choice in subsection (b)(4). So the Carlines' reading of subsection (b)(4), while plausible when viewed in isolation (see supra, at 5-6), is untenable in light of 11503 as a whole. See Gade v. National Solid Wastes Management Assn.___, ___ (1992) (slip op., at 9); see also United Savings Assn. of Texas v. Timbers of Inwood Forest Associates, Ltd., ("A provision that may seem ambiguous in isolation is often [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 10] clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law"). It is true that tax exemptions, as an abstract matter, could be a variant of tax discrimination. See Davis v. Michigan Dept. of Treasury, . The structure of 11503, however, warrants the conclusion that subsection (b)(4) does not limit state discretion to levy a tax upon railroad property while exempting various classes of non-railroad property.Other considerations reinforce our construction of the statute. In drafting 11503, Congress prohibited discriminatory tax rates and assessment ratios in no uncertain terms, see 49 U.S.C. 11503(b)(1)-(3), and set forth precise standards for judicial scrutiny of challenged rate and assessment practices. See 11503(c)(1)-(2). By contrast, the statute does not speak with any degree of particularity to the question of tax exemptions. Subsection (b)(4), which prohibits the States from "impos[ing] another tax that discriminates against a rail carrier," is, at best, vague on the point. Congress did not state whether exemptions are a form of forbidden discrimination against rail carriers, and further did not provide a standard for courts to distinguish valid from invalid exemption schemes.Had Congress, as a condition of permitting the taxation of railroad property, intended to restrict state power to exempt non-railroad property, we are confident that it would have spoken with clarity and precision. Property tax exemptions are an important aspect of state and local tax policy. It was common at the time 11503 was drafted, as it is now, for States with generally applicable ad valorem property taxes to exempt various classes of commercial property. Before 1960, a number of States granted such exemptions. See, e.g., Mo.Rev.Stat. 150.040 (1949) (exempting unmanufactured articles consigned for sale and held by commission [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 11] merchants); N.J.Rev. Stat. 54:4-3.20 (1937) (exempting personal property stored in a public warehouse); Vt.Stat.Ann., Tit. 32, 3802 (1959) (exempting tools and implements possessed by mechanics and farmers, and highway building equipment); see also Jacobs, Exemption of Tangible Personalty, in Tax Exemptions 146 (1939) (by 1938, 16 States permitted "temporary exemption of newly located or newly constructed plants, and the machinery and equipment in such plants"). By the 1960's, about 20 States granted real and personal property tax exemptions to pollution control facilities. See McNulty, State Tax Incentives to Fight Pollution, 56 A.B.A.J. 747, 748, and n. 8 (Aug. 1970). By 1971, still well before enactment of the 4-R Act, a majority of the States exempted one or more classes of business personal property, including business inventories, raw materials used in textile manufacturing, manufacturing machinery and allied equipment, and mechanics tools. See Education Commission of the States, Property Assessment and Exemptions: They Need Reform, Table C-1 (Mar. 10, 1973). Given the prevalence of property tax exemptions when Congress enacted the 4-R Act, 11503's silence on the subject - in light of the explicit prohibition of tax rate and assessment ratio discrimination - reflects a determination to permit the States to leave their exemptions in place.Principles of federalism support, in fact compel, our view. Subsection (b)(4), like the whole of 11503, sets limits upon the taxation authority of state government, an authority we have recognized as central to state sovereignty. See, e.g., Tully v. Griffin, Inc., ; Railroad Co. v. Peniston, 18 Wall. 5, 29 (1873). When determining the breadth of a federal statute that impinges upon or preempts the States' traditional powers, we are hesitant to extend the statute beyond its evident scope. See Cipollone v. Liggett Group, Inc.___, ___ (slip op., at 3) (1992) [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 12] ("We do not, absent unambiguous evidence, infer a scope of preemption beyond that which clearly is mandated by Congress' language") (BLACKMUN, J., concurring); id. at ___ (slip op., at 12) (opinion of STEVENS, J.); R. J. Reynolds Tobacco Co. v. Durham County, . We will interpret a statute to preempt the traditional state powers only if that result is "the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., . As explained above, neither subsection (b)(4) nor the whole of 11503 meet this standard with regard to the prohibition of property tax exemptions.The Carlines contend that the legislative history of 11503 casts doubt upon our interpretation, but the history - to the extent it has any relevance to our inquiry - affords the Carlines no comfort. The excerpts from the legislative record cited by the Carlines do nothing more than manifest Congress' general concern with the discriminatory taxation of rail carriers. See, e.g., S. Rep. No. 94-595, p. 166 (1976) (describing the Senate bill, which the Conference adopted, as prohibiting "the imposition of any other tax which results in the discriminatory treatment of any common or contract carrier"). The Carlines do not point to a single instance in the legislative record suggesting that Congress had any particular concern with property tax exemptions, or that Congress intended to prohibit exemptions in subsection (b)(4). In fact, the available evidence suggests the opposite of what the Carlines would have us believe. See 120 Cong. Rec. 38734 (1974) (providing assurances that subsection (b)(4) would not prevent the States from granting tax exemptions to encourage industrial development) (remarks of Rep. Staggers, Rep. Adams, Rep. Kuykendall).Nor do the Carlines draw our attention to a single instance in the 15-year legislative history of the 4-R Act in which representatives of the railroad industry [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 13] expressed concern about discriminatory property tax exemptions. In fact, when urging the Senate to adopt subsection (b)(4), industry representatives characterized the provision as prohibiting only discriminatory in lieu taxes and gross receipts taxes; property tax exemptions, in contrast, were not mentioned. See Hearings before the Subcommittee on Surface Transportation of the Senate Committee on Commerce on Legislation Relating to Rail Passenger Service, 94th Cong., 1st Sess., pt. 5, pp. 1837, 1883 (1975). In sum, the Carlines' argument with respect to legislative history is without foundation.As a final matter, we address the contention that our interpretation of subsection (b)(4) leads to an anomalous result. The Carlines maintain that it would be nonsensical for Congress to prohibit the States from imposing higher tax rates or assessment ratios upon railroad property than upon other taxed property, while at the same time permitting the States to exempt some or all classes of non-railroad property altogether. That result, it is argued, prohibits discrimination of a mild form, but permits it in the extreme. We think our interpretation is not at all implausible.To begin with, this is not a case in which the railroads - either alone or as part of some isolated and targeted group - are the only commercial entities subject to an ad valorem property tax. Cf. Burlington Northern R. Co. v. City of Superior, 932 F.2d 1185 (CA7 1991) (occupation tax on owners and operators of "iron ore concentrates docks," in practical effect, applied only to docks owned by one particular rail carrier). If such a case were to arise, it might be incorrect to say that the State "exempted" the nontaxed property. Rather, one could say that the State had singled out railroad property for discriminatory treatment. See J. Hellerstein & W. Hellerstein, State and Local Taxation 973 (5th ed. 1988) (the term "exemption" does not mean every exclusion from the reach of a levy, but rather exclusions of "property, persons, transactions ... which are logically [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 14] within the tax base"). On the record before us, Oregon's ad valorem property tax does not single out railroad property in that manner, and we need not decide whether subsection (b)(4) would prohibit a tax of that nature.In addition, though some may think it unwise to forbid discrimination in tax rates and assessment ratios while permitting exemptions of certain non-railroad property, the result is not "so bizarre that Congress `could not have intended'" it. Demarest v. Manspeaker, (citing Griffin v. Oceanic Contractors, Inc., ). About half of the States grant property tax exemptions to encourage investment in air and water pollution control devices. See 1 CCH State Tax Guide 691-692 (1992). And it is standard practice for States to grant exemptions to commercial entities for other beneficial purposes. See, e.g., La. Const., Art. VII, 21(F) (10-year exemption for any "new manufacturing establishment or [any] addition to an existing manufacturing establishment"); Ore.Rev.Stat. 285.597 (1991) (exemption for business property in an "enterprise zone"); Va.Code Ann. 58.1-3661 (1991) (permitting any county, city or town to exempt from its property tax "solar energy equipment, facilities or devices" and "recycling equipment, facilities, or devices"). It is within Congress' sound discretion to weigh the benefit of preserving those exemptions, on one hand, against the benefit of protecting rail carriers from every tax scheme that favors some non-railroad property, on the other.We conclude that 11503, which expresses Congress' resolution of the matter, does not limit the States' discretion to exempt non-railroad property, but not railroad property, from ad valorem property taxes of general application. We therefore reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered.[Footnote *] Western Air Lines, Inc. v. Board of Equalization of S. D. raised the question whether certain property tax exemptions were prohibited under the antidiscrimination provisions of the Airport and Airway Improvement Act of 1982 (AAIA), 49 U.S.C. App. 1513(d)(1)(A)-(C), which are identical for all relevant purposes to analogous provisions under the 4-R Act, 49 U.S.C. 11503(b)(1)-(3). The case was on appeal from the Supreme Court of South Dakota, which had held that such exemptions were not subject to challenge under the AAIA. Western Air Lines, Inc. v. Hughes County, 372 N.W.2d 106 (1985). The Court rested this ruling upon its conclusion that the definition of "commercial and industrial property" in the AAIA, 49 U.S.C. App. 1513(d)(2)(D) - which, like the parallel definition in 49 U.S.C. 11503(a)(4), is limited to property "subject to a property tax levy" - included taxed property, but not exempt property. 372 N.W.2d, at 110. Because the comparison class against which tax discrimination was measured under 1513(d)(1)(A)-(C) did not include exempt property, the Court reasoned that the AAIA did not prohibit property tax exemptions. We affirmed, but on grounds unrelated to the Court's construction of the terms "commercial and industrial property" and "subject to a property tax levy." Western Air Lines, Inc. v. Board of Equalization of S.D., 480 U.S., at 129-134. Justice White concurred, but expressed his view that the "ground on which the South Dakota Supreme Court sustained the tax" was "plainly improvident." Id., at 135; see also Northwest Airlines, Inc. v. North Dakota, 358 N.W.2d 515, 517 (N.D. 1984). [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 1] JUSTICE STEVENS, dissenting.Section 306(1)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act), 90 Stat. 54, codified as amended at 49 U.S.C. 11503(b)(4) ("subsection (b)(4)"), prohibits States from imposing taxes that discriminate against railroads.1 In my view, a State tax that fell upon railroad property, but from which comparable non-railroad property was exempt, would clearly implicate that prohibition. The Court errs in holding that such arrangements are not even subject to challenge under subsection (b)(4).Because subsection (b)(4), by its terms, bars any tax that "discriminates" against rail carriers, it is not surprising that the Courts of Appeals have held that the provision applies to revenue measures that discriminate by imposing taxes on railroad property and exempting [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 2] similar property owned by others.2 While those courts (and the District Court and Court of Appeals in this case) have differed on precisely how to decide whether a wholesale exemption unlawfully "discriminates," and thus gives rise to liability, none has taken the position accepted by the Court today that a claim predicated on discriminatory exemptions is not cognizable under subsection (b)(4).As the Court explains, ante at 10, subsection (b)(4) does not contain a specific prohibition against imposing on railroads an ad valorem tax from which other property owners are exempt. That omission, of course, does not answer the question before us: whether the tax that Oregon has imposed "discriminates against a rail carrier" within the meaning of subsection (b)(4). A State might discriminate against a disfavored class of taxpayers in a variety of ways. The absence in the 4-R Act of a provision specifically addressing exemptions is no more significant than the absence of a provision addressing deductions, credits, methods of collecting or protesting state taxes, or penalties. Surely a state tax law that [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 3] allowed a substantial tax deduction for all taxpayers except rail carriers would readily be recognized as discriminatory. That conclusion would not be affected by the fact that the antidiscrimination statute does not speak specifically to deductions. Indeed, the Court suggests that an exemption for all taxpayers except rail carriers would make the tax discriminatory. See ante, at 13.Rather than addressing every means that might be devised to accord discriminatory tax treatment to rail carriers, Congress specified two familiar methods (differential rates and assessments) and then included a general provision designed to block other routes to the same end. In my opinion, it is anomalous to read 11503(b) to prohibit even minor deviations in rates or assessments, but then to allow States to put manifestly disproportionate tax burdens on railroads by exempting most comparable property. Both the text of subsection (b)(4) and its evident purposes convince me that Congress intended to bar discrimination by any means, including exemptions.In Davis v. Michigan Dept. of Treasury, , this Court held that a State's exemption of a limited class of residents violated a general statutory prohibition against discriminatory taxation (4 U.S.C. 111) that made no specific reference to exemptions. While I disagreed with the Court's conclusion that the limited exemption at issue could fairly be characterized as discrimination against the protected class, Davis surely demonstrates that an exemption, even if not expressly prohibited, may support the conclusion that a tax is discriminatory. Indeed, tax exemptions may make a tax unconstitutionally discriminatory. See, e.g., Bacchus Imports, Ltd. v. Dias, ; Armco Inc. v. Hardesty, . I see no reason why they should be totally ignored when Congress has expressly prohibited [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 4] "discrimination" against a particular kind of interstate enterprise.The Court puts great stock in the difference between the specific and strict bar against discriminatory tax rates and assessments in subsections (b)(1)-(b)(3) and the open-ended language of subsection (b)(4), which speaks only tersely of "discriminat[ion]." As the Court explains, the definition of "commercial and industrial property" that is applicable to subsections (b)(1)-(b)(3) is best read to embrace only property that is taxed, rather than exempted. If we were to accept the Carlines' position, the Court reasons, subsection (b)(4) would render the earlier provisions redundant, and would "nullify" the limitations Congress placed on the rate and assessment provisions. Ante, at 9. I disagree.The ban on discriminatory rates and assessments targets two patent and historically common forms of discrimination. In order to find discrimination in rates or assessment ratios, a court need only compare the rates and assessments applicable to railroads to the rates and assessments of other owners of comparable property. That inquiry would be complicated indeed if the courts were required to divine the "rates" and "assessments" governing property that is exempt from tax. It is not surprising, then, that the strict bars against disparate rates and assessments exclude from the comparison class property that is not taxed at all.Congress's exclusion of exempted property from the comparison class for purposes of subsections (b)(1)-(b)(3) does not determine the scope of subsection (b)(4), for that provision does not depend on the limited definition of "commercial and industrial property," that governs its neighbors. Reading subsection (b)(4) to require judicial scrutiny of state exemption schemes creates no disharmony with subsections (b)(1)-(b)(3) unless one assumes that the test of "discrimination" under subsection (b)(4), like the per se rules against differential rates and [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 5] assessments, prohibits all but the most minor differentials in tax treatment between railroad property and owners of similar property. That assumption is unwarranted.The statute before the Court today (like the statute it construed in Davis) does not contain a definition of the term "discrimination," but that familiar concept and the policies of the 4-R Act provide guidance. Like the statute at issue in Davis, the 4-R Act protects taxpayers who often have little voice in the policy decisions of the taxing State, and whose situation makes them likely targets for unfavorable treatment.3 The prohibition of discrimination should be read to give effect to those concerns, but it need not be read more broadly. A sensible test for prohibited discrimination - focusing on whether the protected class is being treated substantially less favorably than most similarly situated persons - would leave the States room to employ exemptions without falling afoul of subsection (b)(4).As amicus the Solicitor General suggests, a discrimination standard allows the States to impose disparate tax burdens when the disparity is supported by some legitimate difference between the exempted non-railroad property and the taxed railroad property.4 In my view, an exemption for a small minority of the resident taxpayers would not warrant a conclusion that prohibited "discrimination" has occurred. See Davis, 489 U.S., at 819-823 (STEVENS, J., dissenting). Because subsection [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 6] (b)(4) merely protects railroads from discrimination, rather than conferring on them a right to be treated like the most favorably treated taxpayer, a violation would not be established when the tax paid on railroad property is not materially greater than the tax imposed on most comparable property.5 But surely a tax imposed on rail carriers is not saved from discrimination merely because some other kind of enterprise (e.g., motor carriers) is also subject to taxation.The evident purpose of this part of the 4-R Act, as the Court recognizes, is to protect a class of interstate enterprises that has traditionally been subject to disproportionately heavy state and local tax burdens. This is an area in which State authority has always been circumscribed, most prominently by the Commerce Clause itself. Subsection (b)(4) plainly requires States to readjust their tax arrangements to the extent those arrangements "discriminate." I cannot agree that federalism "compels" us to read subsection (b)(4) as inapplicable to exemption arrangements. See ante, at 11.Federalism concerns would weigh more heavily in favor of Oregon's position if, as the Court suggests, ante, at 10-12 reading subsection (b)(4) to apply to exemption schemes would require States to choose between exempting railroads or eliminating tax exemptions across the board. But as I have explained, such a reading is by no means required. Because the statutory term "discrimination" permits the States greater flexibility to employ exemptions than do the bans on disparate [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 7] rates and assessments, the Court's concerns about imposing onerous choices on States are overstated.6 Moreover, an exemption that is meaningfully available to railroads - as in the Court's example of an exemption for funds spent on environmental cleanup - would not make a tax "discriminatory" merely because the exemption may be more useful for some other businesses than it is for railroads. Cf. Burlington Northern, Inc. v. City of Superior, 932 F.2d 1185, 1187 (CA7 1991) (invalidating tax "imposed on an activity in which only a railroad or railroads engage").The Court appears to hedge against its position that subparagraph (b)(4) flatly does not apply to taxes and exemption schemes that operate to burden railroads disproportionately. Thus, the Court intimates that the State ad valorem tax must, in order to escape scrutiny under subsection (b)(4), be "generally applicable," ante, at 1, 6, and that a scheme that taxed railroad property but exempted all non-railroad property might be unlawful because it would not be a bona fide "exemption." See ante, at 13-14. If I were convinced that Oregon's ad valorem property taxes were generally applicable, I would agree with the Court's disposition of this case. The narrowness or breadth of the exemptions, and correspondingly the evenhanded or discriminatory nature of the tax on railroads, goes to whether a subsection (b)(4) claim has merit, not to whether it is cognizable. [ DEPARTMENT OF REV. OF OREGON v. ACF INDUS., ___ U.S. ___ (1994), 8] The statute provides no basis for prohibiting the exemption of one-hundred percent of non-railroad property but allowing the exemption of, for example, ninety percent.I recognize that application of the statutory "discrimination" standard will sometimes involve problems of line-drawing, and that discriminatory exemptions raise special difficulties. But, in my view, the statute requires courts to grapple with those difficulties. I would remand the case to the Court of Appeals to give it an opportunity to resolve the parties' disputes about the extent of any disparate burdens imposed on rail carriers by Oregon's ad valorem tax and to review the discrimination issue in accordance with the considerations set forth in this opinion.Accordingly, I respectfully dissent. |
2 | Two forms of federal assistance help public libraries provide patrons with Internet access: discounted rates under the E-rate program and grants under the Library Services and Technology Act (LSTA). Upon discovering that library patrons, including minors, regularly search the Internet for pornography and expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers, Congress enacted the Children's Internet Protection Act (CIPA), which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them. Appellees, a group of libraries, patrons, Web site publishers, and related parties, sued the Government, challenging the constitutionality of CIPA's filtering provisions. Ruling that CIPA is facially unconstitutional and enjoining the Government from withholding federal assistance for failure to comply with CIPA, the District Court held, inter alia, that Congress had exceeded its authority under the Spending Clause because any public library that complies with CIPA's conditions will necessarily violate the First Amendment; that the CIPA filtering software constitutes a content-based restriction on access to a public forum that is subject to strict scrutiny; and that, although the Government has a compelling interest in preventing the dissemination of obscenity, child pornography, or material harmful to minors, the use of software filters is not narrowly tailored to further that interest.Held: The judgment is reversed.201 F. Supp. 2d 401, reversed. Chief Justice Rehnquist, joined by Justice O'Connor, Justice Scalia, and Justice Thomas, concluded: 1. Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power. Congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives, South Dakota v. Dole, 483 U. S. 203, 206, but may not "induce" the recipient "to engage in activities that would themselves be unconstitutional," id., at 210. To determine whether libraries would violate the First Amendment by employing the CIPA filtering software, the Court first examines their societal role. To fulfill their traditional missions of facilitating learning and cultural enrichment, public libraries must have broad discretion to decide what material to provide to their patrons. This Court has held in two analogous contexts that the Government has broad discretion to make content-based judgments in deciding what private speech to make available to the public. Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666, 672-674; National Endowment for Arts v. Finley, 524 U. S. 569, 585-586. Just as forum analysis and heightened judicial scrutiny were incompatible with the role of public television stations in the former case and the role of the National Endowment for the Arts in the latter, so are they incompatible with the broad discretion that public libraries must have to consider content in making collection decisions. Thus, the public forum principles on which the District Court relied are out of place in the context of this case. Internet access in public libraries is neither a "traditional" nor a "designated" public forum. See, e.g., Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802-803. Unlike the "Student Activity Fund" at issue in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834, Internet terminals are not acquired by a library in order to create a public forum for Web publishers to express themselves. Rather, a library provides such access for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. The fact that a library reviews and affirmatively chooses to acquire every book in its collection, but does not review every Web site that it makes available, is not a constitutionally relevant distinction. The decisions by most libraries to exclude pornography from their print collections are not subjected to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently. Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not. While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review. Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything made available has requisite and appropriate quality. Concerns over filtering software's tendency to erroneously "overblock" access to constitutionally protected speech that falls outside the categories software users intend to block are dispelled by the ease with which patrons may have the filtering software disabled. Pp. 6-13. 2. CIPA does not impose an unconstitutional condition on libraries that receive E-rate and LSTA subsidies by requiring them, as a condition on that receipt, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. Assuming that appellees may assert an "unconstitutional conditions" claim, that claim would fail on the merits. When the Government appropriates public funds to establish a program, it is entitled to broadly define that program's limits. Rust v. Sullivan, 500 U. S. 173, 194. As in Rust, the Government here is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purpose for which they are authorized: helping public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust. Appellees mistakenly contend, in reliance on Legal Services Corporation v. Velazquez, 531 U. S. 533, 542-543, that CIPA's filtering conditions distort the usual functioning of public libraries. In contrast to the lawyers who furnished legal aid to the indigent under the program at issue in Velazquez, public libraries have no role that pits them against the Government, and there is no assumption, as there was in that case, that they must be free of any conditions that their benefactors might attach to the use of donated funds. Pp. 13-17. Justice Kennedy concluded that if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request, there is little to this case. There are substantial Government interests at stake here: The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that adult library users' access to the material is burdened in any significant degree, the statute is not unconstitutional on its face. If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not this facial challenge. Pp. 1-2. Justice Breyer agreed that the "public forum" doctrine is inapplicable here and that the statute's filtering software provisions do not violate the First Amendment, but would reach that ultimate conclusion through a different approach. Because the statute raises special First Amendment concerns, he would not require only a "rational basis" for the statute's restrictions. At the same time, "strict scrutiny" is not warranted, for such a limiting and rigid test would unreasonably interfere with the discretion inherent in the "selection" of a library's collection. Rather, he would examine the constitutionality of the statute's restrictions as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not "strict," scrutiny — where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. The key question in such instances is one of proper fit. The Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives. It has considered the legitimacy of the statute's objective, the extent to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and ultimately whether the statute works speech-related harm that is out of proportion to that objective. The statute's restrictions satisfy these constitutional demands. Its objectives — of restricting access to obscenity, child pornography, and material that is comparably harmful to minors — are "legitimate," and indeed often "compelling." No clearly superior or better fitting alternative to Internet software filters has been presented. Moreover, the statute contains an important exception that limits the speech-related harm: It allows libraries to permit any adult patron access to an "overblocked" Web site or to disable the software filter entirely upon request. Given the comparatively small burden imposed upon library patrons seeking legitimate Internet materials, it cannot be said that any speech-related harm that the statute may cause is disproportionate when considered in relation to the statute's legitimate objectives. Pp. 1-6. Rehnquist, C. J., announced the judgment of the Court and delivered an opinion, in which O'Connor, Scalia, and Thomas, JJ., joined. Kennedy, J., and Breyer, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion. Souter, J., filed a dissenting opinion, in which Ginsburg, J., joined.UNITED STATES, et al., APPELLANTS v. AMERICAN LIBRARY ASSOCIATION, INC., et al.on appeal from the united states district court for the eastern district of pennsylvania[June 23, 2003] Chief Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which Justice O'Connor, Justice Scalia, and Justice Thomas joined. To address the problems associated with the availability of Internet pornography in public libraries, Congress enacted the Children's Internet Protection Act (CIPA), 114 Stat. 2763A-335. Under CIPA, a public library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them. The District Court held these provisions facially invalid on the ground that they induce public libraries to violate patrons' First Amendment rights. We now reverse. To help public libraries provide their patrons with Internet access, Congress offers two forms of federal assistance. First, the E-rate program established by the Telecommunications Act of 1996 entitles qualifying libraries to buy Internet access at a discount. 110 Stat. 71, 47 U. S. C. §254(h)(1)(B). In the year ending June 30, 2002, libraries received $58.5 million in such discounts. Redacted Joint Trial Stipulations of All Parties in Nos. 01-CV-1303, etc. (ED Pa.), ¶ ;128, p. 16 (hereinafter Jt. Tr. Stip.). Second, pursuant to the Library Services and Technology Act (LSTA), 110 Stat. 3009-295, as amended, 20 U. S. C. §9101 et seq., the Institute of Museum and Library Services makes grants to state library administrative agencies to "electronically lin[k] libraries with educational, social, or information services," "assis[t] libraries in accessing information through electronic networks," and "pa[y] costs for libraries to acquire or share computer systems and telecommunications technologies." §§9141(a)(1)(B), (C), (E). In fiscal year 2002, Congress appropriated more than $149 million in LSTA grants. Jt. Tr. Stip. ¶ ;185, p. 26. These programs have succeeded greatly in bringing Internet access to public libraries: By 2000, 95% of the Nation's libraries provided public Internet access. J. Bertot & C. McClure, Public Libraries and the Internet 2000: Summary Findings and Data Tables, p. 3 (Sept. 7, 2000), http://www.nclis.gov/statsuru/2000plo.pdf (all Internet materials as visited Mar. 25, 2003, and available in Clerk of Court's case file). By connecting to the Internet, public libraries provide patrons with a vast amount of valuable information. But there is also an enormous amount of pornography on the Internet, much of which is easily obtained. 201 F. Supp. 2d 401, 419 (ED Pa. 2002). The accessibility of this material has created serious problems for libraries, which have found that patrons of all ages, including minors, regularly search for online pornography. Id., at 406. Some patrons also expose others to pornographic images by leaving them displayed on Internet terminals or printed at library printers. Id., at 423. Upon discovering these problems, Congress became concerned that the E-rate and LSTA programs were facilitating access to illegal and harmful pornography. S. Rep. No. 105-226, p. 5 (1998). Congress learned that adults "us[e] library computers to access pornography that is then exposed to staff, passersby, and children," and that "minors acces[s] child and adult pornography in libraries."1 But Congress also learned that filtering software that blocks access to pornographic Web sites could provide a reasonably effective way to prevent such uses of library resources. Id., at 20-26. By 2000, before Congress enacted CIPA, almost 17% of public libraries used such software on at least some of their Internet terminals, and 7% had filters on all of them. Library Research Center of U. Ill., Survey of Internet Access Management in Public Libraries 8, http://alexia.lis.uiuc.edu/gslis/research/internet.pdf. A library can set such software to block categories of material, such as "Pornography" or "Violence." 201 F. Supp. 2d, at 428. When a patron tries to view a site that falls within such a category, a screen appears indicating that the site is blocked. Id., at 429. But a filter set to block pornography may sometimes block other sites that present neither obscene nor pornographic material, but that nevertheless trigger the filter. To minimize this problem, a library can set its software to prevent the blocking of material that falls into categories like "Education," "History," and "Medical." Id., at 428-429. A library may also add or delete specific sites from a blocking category, id., at 429, and anyone can ask companies that furnish filtering software to unblock particular sites, id., at 430. Responding to this information, Congress enacted CIPA. It provides that a library may not receive E-rate or LSTA assistance unless it has "a policy of Internet safety for minors that includes the operation of a technology protection measure ... that protects against access" by all persons to "visual depictions" that constitute "obscen[ity]" or "child pornography," and that protects against access by minors to "visual depictions" that are "harmful to minors." 20 U. S. C. §§9134(f)(1)(A)(i) and (B)(i); 47 U. S. C. §§254(h)(6)(B)(i) and (C)(i). The statute defines a "[t]echnology protection measure" as "a specific technology that blocks or filters Internet access to material covered by" CIPA. §254(h)(7)(I). CIPA also permits the library to "disable" the filter "to enable access for bona fide research or other lawful purposes." 20 U. S. C. §9134(f)(3); 47 U. S. C. §254(h)(6)(D). Under the E-rate program, disabling is permitted "during use by an adult." §254(h)(6)(D). Under the LSTA program, disabling is permitted during use by any person. 20 U. S. C. §9134(f)(3). Appellees are a group of libraries, library associations, library patrons, and Web site publishers, including the American Library Association (ALA) and the Multnomah County Public Library in Portland, Oregon (Multnomah). They sued the United States and the Government agencies and officials responsible for administering the E-rate and LSTA programs in District Court, challenging the constitutionality of CIPA's filtering provisions. A three-judge District Court convened pursuant to §1741(a) of CIPA, 114 Stat. 2763A-351, note following 20 U. S. C. §7001. After a trial, the District Court ruled that CIPA was facially unconstitutional and enjoined the relevant agencies and officials from withholding federal assistance for failure to comply with CIPA. The District Court held that Congress had exceeded its authority under the Spending Clause, U. S. Const., Art. I, §8, cl. 1, because, in the court's view, "any public library that complies with CIPA's conditions will necessarily violate the First Amendment." 201 F. Supp. 2d, at 453. The court acknowledged that "generally the First Amendment subjects libraries' content-based decisions about which print materials to acquire for their collections to only rational [basis] review." Id., at 462. But it distinguished libraries' decisions to make certain Internet material inaccessible. "The central difference," the court stated, "is that by providing patrons with even filtered Internet access, the library permits patrons to receive speech on a virtually unlimited number of topics, from a virtually unlimited number of speakers, without attempting to restrict patrons' access to speech that the library, in the exercise of its professional judgment, determines to be particularly valuable." Ibid. Reasoning that "the provision of Internet access within a public library ... is for use by the public ... for expressive activity," the court analyzed such access as a "designated public forum." Id., at 457 (citation and internal quotation marks omitted). The District Court also likened Internet access in libraries to "traditional public fora ... such as sidewalks and parks" because it "promotes First Amendment values in an analogous manner." Id., at 466. Based on both of these grounds, the court held that the filtering software contemplated by CIPA was a content-based restriction on access to a public forum, and was therefore subject to strict scrutiny. Ibid. Applying this standard, the District Court held that, although the Government has a compelling interest "in preventing the dissemination of obscenity, child pornography, or, in the case of minors, material harmful to minors," id., at 471, the use of software filters is not narrowly tailored to further those interests, id., at 479. We noted probable jurisdiction, 537 U. S. 1017 (2002), and now reverse. Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives. South Dakota v. Dole, 483 U. S. 203, 206 (1987). But Congress may not "induce" the recipient "to engage in activities that would themselves be unconstitutional." Id., at 210. To determine whether libraries would violate the First Amendment by employing the filtering software that CIPA requires,2 we must first examine the role of libraries in our society. Public libraries pursue the worthy missions of facilitating learning and cultural enrichment. Appellee ALA's Library Bill of Rights states that libraries should provide "[b]ooks and other ... resources ... for the interest, information, and enlightenment of all people of the community the library serves." 201 F. Supp. 2d, at 420 (internal quotation marks omitted). To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons. Although they seek to provide a wide array of information, their goal has never been to provide "universal coverage." Id., at 421. Instead, public libraries seek to provide materials "that would be of the greatest direct benefit or interest to the community." Ibid. To this end, libraries collect only those materials deemed to have "requisite and appropriate quality." Ibid. See W. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980) ("The librarian's responsibility ... is to separate out the gold from the garbage, not to preserve everything"); F. Drury, Book Selection xi (1930) ("[I]t is the aim of the selector to give the public, not everything it wants, but the best that it will read or use to advantage"); App. 636 (Rebuttal Expert Report of Donald G. Davis, Jr.) ("A hypothetical collection of everything that has been produced is not only of dubious value, but actually detrimental to users trying to find what they want to find and really need"). We have held in two analogous contexts that the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public. In Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666, 672-673 (1998), we held that public forum principles do not generally apply to a public television station's editorial judgments regarding the private speech it presents to its viewers. "[B]road rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations." Id., at 673. Recognizing a broad right of public access "would [also] risk implicating the courts in judgments that should be left to the exercise of journalistic discretion." Id., at 674. Similarly, in National Endowment for Arts v. Finley, 524 U. S. 569 (1998), we upheld an art funding program that required the National Endowment for the Arts (NEA) to use content-based criteria in making funding decisions. We explained that "[a]ny content-based considerations that may be taken into account in the grant-making pro-cess are a consequence of the nature of arts funding." Id., at 585. In particular, "[t]he very assumption of the NEA is that grants will be awarded according to the 'artistic worth of competing applicants,' and absolute neutrality is simply inconceivable." Ibid. (some internal quotation marks omitted). We expressly declined to apply forum analysis, reasoning that it would conflict with "NEA's mandate ... to make esthetic judgments, and the inherently content-based 'excellence' threshold for NEA support." Id., at 586. The principles underlying Forbes and Finley also apply to a public library's exercise of judgment in selecting the material it provides to its patrons. Just as forum analysis and heightened judicial scrutiny are incompatible with the role of public television stations and the role of the NEA, they are also incompatible with the discretion that public libraries must have to fulfill their traditional missions. Public library staffs necessarily consider content in making collection decisions and enjoy broad discretion in making them. The public forum principles on which the District Court relied, 201 F. Supp. 2d, at 457-470, are out of place in the context of this case. Internet access in public libraries is neither a "traditional" nor a "designated" public forum. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788, 802 (1985) (describing types of forums). First, this resource — which did not exist until quite recently — has not "immemorially been held in trust for the use of the public and, time out of mind, ... been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 679 (1992) (internal quotation marks omitted). We have "rejected the view that traditional public forum status extends beyond its historic confines." Forbes, supra, at 678. The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking. Nor does Internet access in a public library satisfy our definition of a "designated public forum." To create such a forum, the government must make an affirmative choice to open up its property for use as a public forum. Cornelius, supra, at 802-803; Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983). "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a non-traditional forum for public discourse." Cornelius, supra, at 802. The District Court likened public libraries' Internet terminals to the forum at issue in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). 201 F. Supp. 2d, at 465. In Rosenberger, we considered the "Student Activity Fund" established by the University of Virginia that subsidized all manner of student publications except those based on religion. We held that the fund had created a limited public forum by giving public money to student groups who wished to publish, and therefore could not discriminate on the basis of viewpoint. The situation here is very different. A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to "encourage a diversity of views from private speakers," Rosenberger, supra, at 834, but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality. See Cornelius, supra, at 805 (noting, in upholding limits on participation in the Combined Federal Campaign (CFC), that "[t]he Government did not create the CFC for purposes of providing a forum for expressive activity"). As Congress recognized, "[t]he Internet is simply another method for making information available in a school or library." S. Rep. No. 106-141, p. 7 (1999). It is "no more than a technological extension of the book stack." Ibid.3 The District Court disagreed because, whereas a library reviews and affirmatively chooses to acquire every book in its collection, it does not review every Web site that it makes available. 201 F. Supp. 2d, at 462-463. Based on this distinction, the court reasoned that a public library enjoys less discretion in deciding which Internet materials to make available than in making book selections. Ibid. We do not find this distinction constitutionally relevant. A library's failure to make quality-based judgments about all the material it furnishes from the Web does not somehow taint the judgments it does make. A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently, when these judgments are made for just the same reason. Moreover, because of the vast quantity of material on the Internet and the rapid pace at which it changes, libraries cannot possibly segregate, item by item, all the Internet material that is appropriate for inclusion from all that is not. While a library could limit its Internet collection to just those sites it found worthwhile, it could do so only at the cost of excluding an enormous amount of valuable information that it lacks the capacity to review. Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality. Like the District Court, the dissents fault the tendency of filtering software to "overblock"--that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block. See post, at 1-3 (opinion of Stevens, J.); post, at 3-4 (opinion of Souter, J.). Due to the software's limitations, "[m]any erroneously blocked [Web] pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as 'pornography' or 'sex.' " 201 F. Supp. 2d, at 449. Assuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled. When a patron encounters a blocked site, he need only ask a librarian to unblock it or (at least in the case of adults) disable the filter. As the District Court found, libraries have the capacity to permanently unblock any erroneously blocked site, id., at 429, and the Solicitor General stated at oral argument that a "library may ... eliminate the filtering with respect to specific sites ... at the request of a patron." Tr. of Oral Arg. 4. With respect to adults, CIPA also expressly authorizes library officials to "disable" a filter altogether "to enable access for bona fide research or other lawful purposes." 20 U. S. C. §9134(f)(3) (disabling permitted for both adults and minors); 47 U. S. C. §254(h)(6)(D) (disabling permitted for adults). The Solicitor General confirmed that a "librarian can, in response to a request from a patron, unblock the filtering mechanism altogether," Tr. of Oral Arg. 11, and further explained that a patron would not "have to explain ... why he was asking a site to be unblocked or the filtering to be disabled," id., at 4. The District Court viewed unblocking and disabling as inadequate because some patrons may be too em-barrassed to request them. 201 F. Supp. 2d, at 411. Butthe Constitution does not guarantee the right to acquire information at a public library without any risk ofembarrassment.4 Appellees urge us to affirm the District Court's judgment on the alternative ground that CIPA imposes an unconstitutional condition on the receipt of federal assistance. Under this doctrine, "the government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech' even if he has no entitlement to that benefit." Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996) (quoting Perry v. Sindermann, 408 U. S. 593, 597 (1972)). Appellees argue that CIPA imposes an unconstitutional condition on libraries that receive E-rate and LSTA subsidies by requiring them, as a condition on their receipt of federal funds, to surrender their First Amendment right to provide the public with access to constitutionally protected speech. The Government counters that this claim fails because Government entities do not have First Amendment rights. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 139 (1973) (Stewart, J., concurring) ("The First Amendment protects the press from governmental interference; it confers no analogous protection on the government"); id., at 139, n. 7 (" 'The purpose of the First Amendment is to protect private expression' " (quoting T. Emerson, The System of Freedom of Expression 700 (1970))). See also Warner Cable Communications, Inc., v. Niceville, 911 F. 2d 634, 638 (CA11 1990); Student Govt. Assn. v. Board of Trustees of the Univ. of Mass., 868 F. 2d 473, 481 (CA1 1989); Estiverne v. Louisiana State Bar Assn., 863 F. 2d 371, 379 (CA5 1989). We need not decide this question because, even assuming that appellees may assert an "unconstitutional conditions" claim, this claim would fail on the merits. Within broad limits, "when the Government appropriates public funds to establish a program it is entitled to define the limits of that program." Rust v. Sullivan, 500 U. S. 173, 194 (1991). In Rust, Congress had appropriated federal funding for family planning services and forbidden the use of such funds in programs that provided abortion counseling. Id., at 178. Recipients of these funds challenged this restriction, arguing that it impermissibly conditioned the receipt of a benefit on the relinquishment of their constitutional right to engage in abortion counseling. Id., at 196. We rejected that claim, recognizing that "the Government [was] not denying a benefit to anyone, but [was] instead simply insisting that public funds be spent for the purposes for which they were authorized." Ibid. The same is true here. The E-rate and LSTA programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes.5 Congress may certainly insist that these "public funds be spent for the purposes for which they were authorized." Ibid. Especially because public libraries have traditionally excluded pornographic material from their other collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs. As the use of filtering software helps to carry out these programs, it is a permissible condition under Rust. Justice Stevens asserts the premise that "[a] federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate [the First] Amendment." Post, at 8. See also post, at 12. But — assuming again thatpublic libraries have First Amendment rights — CIPA does not "penalize" libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress' decision not to subsidize their doing so. To the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance. " 'A refusal to fund protected activity, without more, cannot be equated with the imposition of a 'penalty' on that activity.' " Rust, supra, at 193 (quoting Harris v. McRae, 448 U. S. 297, 317, n. 19 (1980)). " '[A] legislature's decision not to subsidize the exercise of a; fundamental; right does not infringe the right. Rust, supra, at 193 (quoting Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983)).6 Appellees mistakenly contend, in reliance on Legal Services Corporation v. Velazquez, 531 U. S. 533 (2001), that CIPA's filtering conditions "[d]istor[t] the [u]sual [f]unctioning of [p]ublic [l]ibraries." Brief for Appellees ALA et al. 40 (citing Velazquez, supra, at 543); Brief for Appellees Multnomah et al. 47-48 (same). In Velazquez, the Court concluded that a Government program of furnishing legal aid to the indigent differed from the program in Rust "[i]n th[e] vital respect" that the role of lawyers who represent clients in welfare disputes is to advocate against the Government, and there was thus an assumption that counsel would be free of state control. 531 U. S., at 542-543. The Court concluded that the restriction on advocacy in such welfare disputes would distort the usual functioning of the legal profession and the federal and state courts before which the lawyers appeared. Public libraries, by contrast, have no comparable role that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.7 Because public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power. Nor does CIPA impose an unconstitutional condition on public libraries. Therefore, the judgment of the District Court for the Eastern District of Pennsylvania isReversed.UNITED STATES, et al., APPELLANTS v. AMERICANLIBRARY ASSOCIATION, INC., et al.on appeal from the united states district court forthe eastern district of pennsylvania[June 23, 2003] Justice Kennedy, concurring in the judgment. If, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case. The Government represents this is indeed the fact. Tr. of Oral Arg. 11; ante, at 12. The District Court, in its "Preliminary Statement," did say that "the unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries." 201 F. Supp. 2d 401, 411 (ED Pa. 2002). See also post, at 2 (Souter, J., dissenting). That statement, however, does not appear to be a specific finding. It was not the basis for the District Court's decision in any event, as the court assumed that "the disabling provisions permit public libraries to allow a patron access to any speech that is constitutionally protected with respect to that patron." Id., at 485-486. If some libraries do not have the capacity to unblock specific Web sites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case. See post, at 5-6 (Breyer, J., concurring in judgment). There are, of course, substantial Government interests at stake here. The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree. Given this interest, and the failure to show that the ability of adult library users to have access to the material is burdened in any significant degree, the statute is not unconstitutional on its face. For these reasons, I concur in the judgment of the Court.UNITED STATES, et al., APPELLANTS v. AMERICANLIBRARY ASSOCIATION, INC., et al.on appeal from the united states district court forthe eastern district of pennsylvania[June 23, 2003] Justice Breyer, concurring in the judgment. The Children's Internet Protection Act (Act) sets con-ditions for the receipt of certain Government subsidiesby public libraries. Those conditions require the libraries to install on their Internet-accessible computers tech-nology, say, filtering software, that will help prevent computer users from gaining Internet access to child por-nography, obscenity, or material comparably harmful to minors. 20 U. S. C. §§9134(f)(1)(A)(i) and (B)(i); 47 U. S. C.§§254(h)(6)(B)(i) and (C)(i). The technology, in its current form, does not function perfectly, for to some extent it also screens out constitutionally protected materials that fall outside the scope of the statute (i.e., "overblocks") and fails to prevent access to some materials that the statute deems harmful (i.e., "underblocks"). See 201 F. Supp. 2d 401, 448-449 (ED Pa. 2002); ante, at 11-12 (plurality opinion). In determining whether the statute's conditions consequently violate the First Amendment, the plurality first finds the "public forum" doctrine inapplicable, ante, at 8-11, and then holds that the statutory provisions are constitutional. I agree with both determinations. But I reach the plurality's ultimate conclusion in a different way. In ascertaining whether the statutory provisions are constitutional, I would apply a form of heightened scrutiny, examining the statutory requirements in question with special care. The Act directly restricts the public's receipt of information. See Stanley v. Georgia, 394 U. S. 557, 564 (1969) ("[T]he Constitution protects the right to receive information and ideas"); Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997). And it does so through limitations imposed by outside bodies (here Congress) upon two critically important sources of information — the Internet as accessed via public libraries. See ante, at 2, 6 (plurality opinion); post, at 6-7 (Stevens, J., dissenting); Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 915 (1982) (Rehnquist, J., dissenting) (describing public libraries as places "designed for freewheeling inquiry"). See also Reno, supra, at 853, 868 (describing the Internet as a "vast democratic" medium and the World Wide Web, in part, as "comparable, from the readers' viewpoint, to ... a vast library"); Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 566 (2002). For that reason, we should not examine the statute's constitutionality as if it raised no special First Amendment concern — as if, like tax or economic regulation, the First Amendment demanded only a "rational basis" for imposing a restriction. Nor should we accept the Government's suggestion that a presumption in favor of the statute's constitutionality applies. See, e.g., 201 F. Supp. 2d, at 409; Brief for United States 21-24. At the same time, in my view, the First Amendment does not here demand application of the most limiting constitutional approach — that of "strict scrutiny." The statutory restriction in question is, in essence, a kind of "selection" restriction (a kind of editing). It affects the kinds and amount of materials that the library can present to its patrons. See ante, at 6-7, 10-11 (plurality opinion). And libraries often properly engage in the selection of materials, either as a matter of necessity (i.e., due to the scarcity of resources) or by design (i.e., in accordance with collection development policies). See, e.g., 201 F. Supp. 2d, at 408-409, 421, 462; ante, at 6-7, 11 (plurality opinion). To apply "strict scrutiny" to the "selection" of a library's collection (whether carried out by public libraries themselves or by other community bodies with a traditional legal right to engage in that function) would unreasonably interfere with the discretion necessary to create, maintain, or select a library's "collection" (broadly defined to include all the information the library makes available). Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256-258 (1974) (protecting newspaper's exercise of editorial control and judgment). That is to say, "strict scrutiny" implies too limiting and rigid a test for me to believe that the First Amendment requires it in this context. Instead, I would examine the constitutionality of the Act's restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not "strict," scrutiny — where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit. See, e.g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 (1989); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 740-747 (1996) (plurality opinion); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 227 (1997) (Breyer, J., concurring in part); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969). In such cases the Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives. It has considered the legitimacy of the statute's objective, the extent to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and ultimately whether the statute works speech-related harm that, in relation to that objective, is out of proportion. In Fox, supra, at 480, for example, the Court stated:"What our decisions require is a 'fit' between the legislature's ends and the means chosen to accomplish those ends — a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but, as we have put it in the other contexts ..., a means narrowly tailored to achieve the desired objective." (Internal quotation marks and citations omitted.)Cf., e.g., Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557, 564 (1980); United States v. O'Brien, 391 U. S. 367, 377 (1968); Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). This approach does not substitute a form of "balancing" for less flexible, though more speech-protective, forms of "strict scrutiny." Rather, it supplements the latter with an approach that is more flexible but nonetheless provides the legislature with less than ordinary leeway in light of the fact that constitutionally protected expression is at issue. Cf. Fox, supra, at 480-481; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 769-773 (1976). The Act's restrictions satisfy these constitutional demands. The Act seeks to restrict access to obscenity, child pornography, and, in respect to access by minors, material that is comparably harmful. These objectives are "legitimate," and indeed often "compelling." See, e.g., Miller v. California, 413 U. S. 15, 18 (1973) (interest in prohibiting access to obscene material is "legitimate"); Reno, supra, at 869-870 (interest in "shielding" minors from exposure to indecent material is " 'compelling' "); New York v. Ferber, 458 U. S. 747, 756-757 (1982) (same). As the District Court found, software filters "provide a relatively cheap and effective" means of furthering these goals. 201 F. Supp. 2d, at 448. Due to present technological limitations, however, the software filters both "overblock," screening out some perfectly legitimate material, and "underblock," allowing some obscene material to escape detection by the filter. Id., at 448-449. See ante, at 11-12 (plurality opinion). But no one has presented any clearly superior or better fitting alternatives. See ante, at 10, n. 3 (plurality opinion). At the same time, the Act contains an important exception that limits the speech-related harm that "overblocking" might cause. As the plurality points out, the Act allows libraries to permit any adult patron access to an "overblocked" Web site; the adult patron need only ask a librarian to unblock the specific Web site or, alternatively, ask the librarian, "Please disable the entire filter." See ante, at 12; 20 U. S. C. §9134(f)(3) (permitting library officials to "disable a technology protection measure ... to enable access for bona fide research or other lawful purposes"); 47 U. S. C. §254(h)(6)(D) (same). The Act does impose upon the patron the burden of making this request. But it is difficult to see how that burden (or any delay associated with compliance) could prove more onerous than traditional library practices associated with segregating library materials in, say, closed stacks, or with interlibrary lending practices that require patrons to make requests that are not anonymous and to wait while the librarian obtains the desired materials from elsewhere. Perhaps local library rules or practices could further restrict the ability of patrons to obtain "overblocked" Internet material. See, e.g., In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, 16 FCC Rcd. 8182, 8183, ¶ ;2, 8204, ¶ ;53 (2001) (leaving determinations regarding the appropriateness of compliant Internet safety policies and their disabling to local communities). But we are not now considering any such local practices. We here consider only a facial challenge to the Act itself. Given the comparatively small burden that the Act imposes upon the library patron seeking legitimate Internet materials, I cannot say that any speech-related harm that the Act may cause is disproportionate when considered in relation to the Act's legitimate objectives. I therefore agree with the plurality that the statute doesnot violate the First Amendment, and I concur in the judgment.UNITED STATES, et al., APPELLANTS v. AMERICANLIBRARY ASSOCIATION, INC., et al.on appeal from the united states district court forthe eastern district of pennsylvania[June 23, 2003] Justice Stevens, dissenting. "To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide their patrons." Ante, at 6. Accordingly, I agree with the plurality that it is neither inappropriate nor unconstitutional for a local library to experiment with filtering software as a means of curtailing children's access to Internet Web sites displaying sexually explicit images. I also agree with the plurality that the 7% of public libraries that decided to use such software on all of their Internet terminals in 2000 did not act unlawfully. Ante, at 3. Whether it is constitutional for the Congress of the United States to impose that requirement on the other 93%, however, raises a vastly different question. Rather than allowing local decisionmakers to tailor their responses to local problems, the Children's Internet Protection Act (CIPA) operates as a blunt nationwide restraint on adult access to "an enormous amount of valuable information" that individual librarians cannot possibly review. Ante, at 11. Most of that information is constitutionally protected speech. In my view, this restraint is unconstitutional.I The unchallenged findings of fact made by the District Court reveal fundamental defects in the filtering software that is now available or that will be available in the foreseeable future. Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images. As the District Court explained:"[T]he search engines that software companies use for harvesting are able to search text only, not images. This is of critical importance, because CIPA, by its own terms, covers only 'visual depictions.' 20 U. S. C. §9134(f)(1)(A)(i); 47 U. S. C. §254(h)(5)(B)(i). Image recognition technology is immature, ineffective, and unlikely to improve substantially in the near future. None of the filtering software companies deposed in this case employs image recognition technology when harvesting or categorizing URLs. Due to the reliance on automated text analysis and the absence of image recognition technology, a Web page with sexually explicit images and no text cannot be harvested using a search engine. This problem is complicated by the fact that Web site publishers may use image files rather than text to represent words, i.e., they may use a file that computers understand to be a picture, like a photograph of a printed word, rather than regular text, making automated review of their textual content impossible. For example, if the Playboy Web site displays its name using a logo rather than regular text, a search engine would not see or recognize the Playboy name in that logo." 201 F. Supp. 2d 401, 431-432 (ED Pa. 2002).Given the quantity and ever-changing character of Web sites offering free sexually explicit material,1 it is inevitable that a substantial amount of such material will never be blocked. Because of this "underblocking," the statute will provide parents with a false sense of security without really solving the problem that motivated its enactment. Conversely, the software's reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that "contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as 'pornography' or 'sex.' " Id., at 449. In my judgment, a statutory blunderbuss that mandates this vast amount of "overblocking" abridges the freedom of speech protected by the First Amendment. The effect of the overblocking is the functional equivalent of a host of individual decisions excluding hundreds of thousands of individual constitutionally protected messages from Internet terminals located in public libraries throughout the Nation. Neither the interest in suppressing unlawful speech nor the interest in protecting children from access to harmful materials justifies this overly broad restriction on adult access to protected speech. "The Government may not suppress lawful speech as the means to suppress unlawful speech." Ashcroft v. Free Speech Coalition, 535 U. S. 234, 255 (2002).2 Although CIPA does not permit any experimentation, the District Court expressly found that a variety of alternatives less restrictive are available at the local level:"[L]ess restrictive alternatives exist that further the government's legitimate interest in preventing the dissemination of obscenity, child pornography, and material harmful to minors, and in preventing patrons from being unwillingly exposed to patently offensive, sexually explicit content. To prevent patrons from accessing visual depictions that are obscene and child pornography, public libraries may enforce Internet use policies that make clear to patrons that the library's Internet terminals may not be used to access illegal speech. Libraries may then impose penalties on patrons who violate these policies, ranging from a warning to notification of law enforcement, in the appropriate case. Less restrictive alternatives to filtering that further libraries' interest in preventing minors from exposure to visual depictions that are harmful to minors include requiring parental consent to or presence during unfiltered access, or restricting minors' unfiltered access to terminals within view of library staff. Finally, optional filtering, privacy screens, recessed monitors, and placement of unfiltered Internet terminals outside of sight-lines provide less restrictive alternatives for libraries to prevent patrons from being unwillingly exposed to sexually explicit content on the Internet." 201 F. Supp. 2d, at 410. Those findings are consistent with scholarly comment on the issue arguing that local decisions tailored to local circumstances are more appropriate than a mandate from Congress.3 The plurality does not reject any of those findings. Instead, "[a]ssuming that such erroneous blocking presents constitutional difficulties," it relies on the Solicitor General's assurance that the statute permits individual librarians to disable filtering mechanisms whenever a patron so requests. Ante, at 12. In my judgment, that assurance does not cure the constitutional infirmity in the statute. Until a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed. It is as though the statute required a significant part of every library's reading materials to be kept in unmarked, locked rooms or cabinets, which could be opened only in response to specific requests. Some curious readers would in time obtain access to the hidden materials, but many would not. Inevitably, the interest of the authors of those works in reaching the widest possible audience would be abridged. Moreover, because the procedures that different libraries are likely to adopt to respond to unblocking requests will no doubt vary, it is impossible to measure the aggregate effect of the statute on patrons' access to blocked sites. Unless we assume that the statute is a mere symbolic gesture, we must conclude that it will create a significant prior restraint on adult access to protected speech. A law that prohibits reading without official consent, like a law that prohibits speaking without consent, "constitutes a dramatic departure from our national heritage and constitutional tradition." Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 166 (2002).II The plurality incorrectly argues that the statute does not impose "an unconstitutional condition on public libraries." Ante, at 17. On the contrary, it impermissibly conditions the receipt of Government funding on the restriction of significant First Amendment rights. The plurality explains the "worthy missions" of the public library in facilitating "learning and cultural enrichment." Ante, at 6. It then asserts that in order to fulfill these missions, "libraries must have broad discretion to decide what material to provide to their patrons." Ibid. Thus the selection decision is the province of the librarians, a province into which we have hesitated to enter:"A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries' judgments to block online pornography any differently, when these judgments are made for just the same reason." Ante, at 11. As the plurality recognizes, we have always assumed that libraries have discretion when making decisions regarding what to include in, and exclude from, their collections. That discretion is comparable to the " 'business of a university ... to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.' " Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (Frankfurter, J., concurring in result) (citation omitted).4 As the District Court found, one of the central purposes of a library is to provide information for educational purposes: " 'Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves.' " 201 F. Supp. 2d, at 420 (quoting the American Library Association's Library Bill of Rights). Given our Nation's deep commitment "to safeguarding academic freedom" and to the "robust exchange of ideas," Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967), a library's exercise of judgment with respect to its collection is entitled to First Amendment protection. A federal statute penalizing a library for failing to install filtering software on every one of its Internet-accessible computers would unquestionably violate that Amendment. Cf. Reno v. American Civil Liberties Union, 521 U. S. 844 (1997). I think it equally clear that the First Amendment protects libraries from being denied funds for refusing to comply with an identical rule. An abridgment of speech by means of a threatened denial of benefits can be just as pernicious as an abridgment by means of a threatened penalty. Our cases holding that government employment may not be conditioned on the surrender of rights protected by the First Amendment illustrate the point. It has long been settled that "Congress could not 'enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work.' " Wieman v. Updegraff, 344 U. S. 183, 191-192 (1952). Neither discharges, as in Elrod v. Burns, 427 U. S. 347, 350-351 (1976), nor refusals to hire or promote, as in Rutan v. Republican Party of Ill., 497 U. S. 62, 66-67 (1990), are immune from First Amendment scrutiny. Our precedents firmly rejecting "Justice Holmes' famous dictum, that a policeman 'may have a constitutional right to talk politics, but he has no constitutional right to be a policeman,' " Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 674 (1996), draw no distinction between the penalty of discharge from one's job and the withholding of the benefit of a new job. The abridgment of First Amendment rights is equally unconstitutional in either context. See Sherbert v. Verner, 374 U. S. 398, 404 (1963) ("Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine ... . It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"). The issue in this case does not involve governmental attempts to control the speech or views of its employees. It involves the use of its treasury to impose controls on an important medium of expression. In an analogous situation, we specifically held that when "the Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning," the distorting restriction must be struck down under the First Amendment. Legal Services Corporation v. Velazquez, 531 U. S. 533, 543 (2001).5 The question, then, is whether requiring the filtering software on all Internet-accessible computers distorts that medium. As I have discussed above, the over- and underblocking of the software does just that. The plurality argues that the controversial decision in Rust v. Sullivan, 500 U. S. 173 (1991), requires rejection of appellees' unconstitutional conditions claim. See ante, at 14-15. But, as subsequent cases have explained, Rust only involved and only applies to instances of governmental speech — that is, situations in which the government seeks to communicate a specific message.6 The discounts under the E-rate program and funding under the Library Services and Technology Act (LSTA) program involved in this case do not subsidize any message favored by the Government. As Congress made clear, these programs were designed "[t]o help public libraries provide their patrons with Internet access," which in turn "provide[s] patrons with a vast amount of valuable information." Ante, at 1, 2. These programs thus are designed to provide access, particularly for individuals in low-income communities, see 47 U. S. C. §254(h)(1), to a vast amount and wide variety of private speech. They are not designed to foster or transmit any particular governmental message. Even if we were to construe the passage of CIPA as modifying the E-rate and LSTA programs such that they now convey a governmental message that no " 'visual depictions' that are 'obscene,' 'child pornography,' or in the case of minors, 'harmful to minors,' " 201 F. Supp. 2d, at 407, should be expressed or viewed, the use of filtering software does not promote that message. As described above, all filtering software erroneously blocks access to a substantial number of Web sites that contain constitutionally protected speech on a wide variety of topics. See id., at 446-447 (describing erroneous blocking of speech on churches and religious groups, on politics and government, on health issues, on education and careers, on sports, and on travel). Moreover, there are "frequent instances of underblocking," id., at 448, that is, instances in which filtering software did not prevent access to Web sites with depictions that fall within what CIPA seeks to block access to. In short, the message conveyed by the use of filtering software is not that all speech except that which is prohibited by CIPA is supported by the Government, but rather that all speech that gets through the software is supported by the Government. And the items that get through the software include some visual depictions that are obscene, some that are child pornography, and some that are harmful to minors, while at the same time the software blocks an enormous amount of speech that is not sexually explicit and certainly does not meet CIPA's definitions of prohibited content. As such, since the message conveyed is far from the message the Government purports to promote — indeed, the material permitted past the filtering software does not seem to have any coherent message — Rust is inapposite. The plurality's reliance on National Endowment for Arts v. Finley, 524 U. S. 569 (1998), is also misplaced. That case involved a challenge to a statute setting forth the criteria used by a federal panel of experts administering a federal grant program. Unlike this case, the Federal Government was not seeking to impose restrictions on the administration of a nonfederal program. As explained supra, at 9-10 Rust would appear to permit restrictions on a federal program such as the NEA arts grant program at issue in Finley. Further, like a library, the NEA experts in Finley had a great deal of discretion to make judgments as to what projects to fund. But unlike this case, Finley did not involve a challenge by the NEA to a governmental restriction on its ability to award grants. Instead, the respondents were performance artists who had applied for NEA grants but were denied funding. See 524 U. S., at 577. If this were a case in which library patrons had challenged a library's decision to install and use filtering software, it would be in the same posture as Finley. Because it is not, Finley does not control this case. Also unlike Finley, the Government does not merely seek to control a library's discretion with respect to computers purchased with Government funds or those computers with Government-discounted Internet access. CIPA requires libraries to install filtering software on every computer with Internet access if the library receives any discount from the E-rate program or any funds from the LSTA program.7 See 20 U. S. C. §9134(f)(1); 47 U. S. C. §§254(h)(6)(B) and (C). If a library has 10 computers paid for by nonfederal funds and has Internet service for those computers also paid for by nonfederal funds, the library may choose not to put filtering software on any of those 10 computers. Or a library may decide to put filtering software on the 5 computers in its children's section. Or a library in an elementary school might choose to put filters on every single one of its 10 computers. But under this statute, if a library attempts to provide Internet service for even one computer through an E-rate discount, that library must put filtering software on all of its computers with Internet access, not just the one computer with E-rate discount. This Court should not permit federal funds to be used to enforce this kind of broad restriction of First Amendment rights, particularly when such a restriction is unnecessary to accomplish Congress' stated goal. See supra, at 4 (discussing less restrictive alternatives). The abridgment of speech is equally obnoxious whether a rule like this one is enforced by a threat of penalties or by a threat to withhold a benefit. I would affirm the judgment of the District Court. UNITED STATES, et al., APPELLANTS v. AMERICANLIBRARY ASSOCIATION, INC., et al.on appeal from the united states district court forthe eastern district of pennsylvania[June 23, 2003] Justice Souter, with whom Justice Ginsburg joins, dissenting. I agree in the main with Justice Stevens, ante, at 6-12 (dissenting opinion), that the blocking requirementsof the Children's Internet Protection Act, 20 U. S. C. §§9134(f)(1) (A)(i) and (B)(i); 47 U. S. C. §§254(h)(6)(B)(i) and (C)(i), impose an unconstitutional condition on the Government's subsidies to local libraries for providing access to the Internet. I also agree with the library appellees on a further reason to hold the blocking rule invalid in the exercise of the spending power under Article I, §8: the rule mandates action by recipient libraries that would violate the First Amendment's guarantee of free speech if the libraries took that action entirely on their own. I respectfully dissent on this further ground.I Like the other Members of the Court, I have no doubt about the legitimacy of governmental efforts to put a barrier between child patrons of public libraries and the raw offerings on the Internet otherwise available to them there, and if the only First Amendment interests raised here were those of children, I would uphold application of the Act. We have said that the governmental interest in "shielding" children from exposure to indecent material is "compelling," Reno v. American Civil Liberties Union,521 U. S. 844, 869-870 (1997), and I do not think thatthe awkwardness a child might feel on asking for anunblocked terminal is any such burden as to affectconstitutionality. Nor would I dissent if I agreed with the majority of my colleagues, see ante, at 11-12 (plurality opinion); ante, at 5 (Breyer, J., concurring in judgment); ante, at 1 (Kennedy, J., concurring in judgment), that an adult library patron could, consistently with the Act, obtain an unblocked terminal simply for the asking. I realize the Solicitor General represented this to be the Government's policy, see Tr. of Oral Arg. 4-5, 11, and if that policy were communicated to every affected library as unequivocally as it was stated to us at argument, local librarians might be able to indulge the unblocking requests of adult patrons to the point of taking the curse off the statute for all practical purposes. But the Federal Communications Commission, in its order implementing the Act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute. See In re Federal-State Joint Board on Universal Service: Children's Internet Protection Act, 16 FCC Rcd. 8182, 8204, ¶ ;53 (2001) ("Federally-imposed rules directing school and library staff when to disable technology protection measures would likely be overbroad and imprecise, potentially chilling speech, or otherwise confusing schools and libraries about the requirements of the statute. We leave such determinations to the local communities, whom we believe to be most knowledgeable about the varying circumstances of schools or libraries within those communities"). Moreover, the District Court expressly found that "unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries." 201 F. Supp. 2d 401, 411 (ED Pa. 2002); see id., at 487-488 (same). In any event, we are here to review a statute, and the unblocking provisions simply cannot be construed, even for constitutional avoidance purposes, to say that a library must unblock upon adult request, no conditions imposed and no questions asked. First, the statute says only that a library "may" unblock, not that it must. 20 U. S. C. §9134(f)(3); see 47 U. S. C. §254(h)(6)(D). In addition, it allows unblocking only for a "bona fide research or other lawful purposes," 20 U. S. C. §9134(f)(3); see 47 U. S. C. §254(h)(6)(D), and if the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking, see, e.g., Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992) ("[C]ourts should disfavor interpretations of statutes that render language superfluous"). There is therefore necessarily some restriction, which is surely made more onerous by the uncertainty of its terms and the generosity of its discretion to library staffs in deciding who gets complete Internet access and who does not. Cf. Forsyth County v. Nationalist Movement, 505 U. S. 123, 130 (1992) (noting that the First Amendment bars licensing schemes that grant unduly broad discretion to licensing officials, given the potential for such discretion to "becom[e] a means of suppressing a particular point of view" (internal quotation marks omitted)).1 We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of nonobscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one. As the plurality concedes, see ante, at 11, this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software, see 201 F. Supp. 2d, at 408 ("The category lists maintained by the blocking programs are considered to be proprietary information, and hence are unavailable to customers or the general public for review, so that public libraries that select categories when implementing filtering software do not really know what they are blocking"). We likewise have to examine the statute on the understanding that the restrictions on adult Internet access have no justification in the object of protecting children. Children could be restricted to blocked terminals, leaving other unblocked terminals in areas restricted to adults and screened from casual glances. And of course the statute could simply have provided for unblocking at adult request, with no questions asked. The statute could, in other words, have protected children without blocking access for adults or subjecting adults to anything more than minimal inconvenience, just the way (the record shows) many librarians had been dealing with obscenity and indecency before imposition of the federal conditions. See id., at 422-427. Instead, the Government's funding conditions engage in overkill to a degree illustrated by their refusal to trust even a library's staff with an unblocked terminal, one to which the adult public itself has no access. See id., at 413 (quoting 16 FCC Rcd., at 8196, ¶ ;30). The question for me, then, is whether a local library could itself constitutionally impose these restrictions on the content otherwise available to an adult patron through an Internet connection, at a library terminal provided for public use. The answer is no. A library that chose to block an adult's Internet access to material harmful to children (and whatever else the undiscriminating filter might interrupt) would be imposing a content-based restriction on communication of material in the library's control that an adult could otherwise lawfully see. This would simply be censorship. True, the censorship would not necessarily extend to every adult, for an intending Internet user might convince a librarian that he was a true researcher or had a "lawful purpose" to obtain everything the library's terminal could provide. But as to those who did not qualify for discretionary unblocking, the censorship would be complete and, like all censorship by an agency of the Government, presumptively invalid owing to strict scrutiny in implementing the Free Speech Clause of the First Amendment. "The policy of the First Amendment favors dissemination of information and opinion, and the guarantees of freedom of speech and press were not designed to prevent the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential." Bigelow v. Virginia, 421 U. S. 809, 829 (1975) (internal quotation marks and brackets omitted).II The Court's plurality does not treat blocking affecting adults as censorship, but chooses to describe a library's act in filtering content as simply an instance of the kind of selection from available material that every library (save, perhaps, the Library of Congress) must perform. Ante, at 11 ("A library's need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source"). But this position does not hold up.2A Public libraries are indeed selective in what they acquire to place in their stacks, as they must be. There is only so much money and so much shelf space, and the necessity to choose some material and reject the rest justifies the effort to be selective with an eye to demand, quality, and the object of maintaining the library as a place of civilized enquiry by widely different sorts of people. Selectivity is thus necessary and complex, and these two characteristics explain why review of a library's selection decisions must be limited: the decisions are made all the time, and only in extreme cases could one expect particular choices to reveal impermissible reasons (reasons even the plurality would consider to be illegitimate), like excluding books because their authors are Democrats or their critiques of organized Christianity are unsympathetic. See Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 870-871 (1982) (plurality opinion). Review for rational basis is probably the most that any court could conduct, owing to the myriad particular selections that might be attacked by someone, and the difficulty of untangling the play of factors behind a particular decision. At every significant point, however, the Internet blocking here defies comparison to the process of acquisition. Whereas traditional scarcity of money and space require a library to make choices about what to acquire, and the choice to be made is whether or not to spend the money to acquire something, blocking is the subject of a choice made after the money for Internet access has been spent or committed. Since it makes no difference to the cost of Internet access whether an adult calls up material harmful for children or the Articles of Confederation, blocking (on facts like these) is not necessitated by scarcity of either money or space.3 In the instance of the Internet, what the library acquires is electronic access, and the choice to block is a choice to limit access that has already been acquired. Thus, deciding against buying a book means there is no book (unless a loan can be obtained), but blocking the Internet is merely blocking access purchased in its entirety and subject to unblocking if the librarian agrees. The proper analogy therefore is not to passing up a book that might have been bought; it is either to buying a book and then keeping it from adults lacking an acceptable "purpose," or to buying an encyclopedia and then cutting out pages with anything thought to be unsuitable for all adults.B The plurality claims to find support for its conclusions in the "traditional missio[n]" of the public library. Ante, at 8; see also ante, at 5 (Breyer, J., concurring in judgment) (considering "traditional library practices"). The plurality thus argues, in effect, that the traditional responsibility of public libraries has called for denying adult access to certain books, or bowdlerizing the content of what the libraries let adults see. But, in fact, the plurality's conception of a public library's mission has been rejected by the libraries themselves. And no library that chose to block adult access in the way mandated by the Act could claim that the history of public library practice in this country furnished an implicit gloss on First Amendment standards, allowing for blocking out anything unsuitable for adults. Institutional history of public libraries in America discloses an evolution toward a general rule, now firmly rooted, that any adult entitled to use the library has access to any of its holdings.4 To be sure, this freedom of choice was apparently not within the inspiration for the mid-19th century development of public libraries, see J. Shera, Foundations of the Public Library: The Origins of the Public Library Movement in New England, 1629-1855, p. 107 (1949), and in the infancy of their development a "[m]oral censorship" of reading material was assumed, E. Geller, Forbidden Books in American Public Libraries, 1876-1939, p. 12 (1984). But even in the early 20th century, the legitimacy of the librarian's authority as moral arbiter was coming into question. See, e.g., Belden, President's Address: Looking Forward, 20 Bull. Am. Libr. Assn. 273, 274 (1926) ("The true public library must stand for the intellectual freedom of access to the printed word"). And the practices of European fascism fueled the reaction against library censorship. See M. Harris, History of Libraries in the Western World 248 (4th ed. 1995). The upshot was a growing understanding that a librarian's job was to guarantee that "all people had access to all ideas," Geller, supra, at 156, and by the end of the 1930s, librarians' "basic position in opposition to censorship [had] emerged," Krug & Harvey, ALA and Intellectual Freedom: A Historical Overview, in Intellectual Freedom Manual, pp. xi, xv (American Library Association 1974) (hereinafter Intellectual Freedom Manual); see also Darling, Access, Intellectual Freedom and Libraries, 27 Library Trends 315-316 (1979). By the time McCarthyism began its assaults, appellee American Library Association had developed a Library Bill of Rights against censorship, Library Bill of Rights, in Intellectual Freedom Manual, pt. 1, p. 7, and an Intellectual Freedom Committee to maintain the position that beyond enforcing existing laws against obscenity, "there is no place in our society for extra-legal efforts to coerce the taste of others, to confine adults to the reading matter deemed suitable for adolescents, or to inhibit the efforts of writers to achieve artistic expression." Freedom to Read, in id., pt. 2, p. 8; see also Krug & Harvey, in id., at xv. So far as I have been able to tell, this statement expressed the prevailing ideal in public library administration after World War II, and it seems fair to say as a general rule that libraries by then had ceased to deny requesting adults access to any materials in their collections. The adult might, indeed, have had to make a specific request, for the literature and published surveys from the period show a variety of restrictions on the circulation of library holdings, including placement of materials apart from open stacks, and availability only upon specific request.5 But aside from the isolated suggestion, see, e.g., Born, Public Libraries and Intellectual Freedom, in id., pt. 3, pp. 4, 9, I have not been able to find from this period any record of a library barring access to materials in its collection on a basis other than a reader's age. It seems to have been out of the question for a library to refuse a book in its collection to a requesting adult patron, or to presume to evaluate the basis for a particular request. This take on the postwar years is confirmed by evidence of the dog that did not bark. During the second half of the 20th century, the ALA issued a series of policy statements, since dubbed Interpretations of the Library Bill of Rights, see id., pt. 1, p. 13, commenting on library administration and pointing to particular practices the ALA opposed. Thus, for example, in response to pressure by the Sons of the American Revolution on New Jersey libraries to place labels on materials "advocat[ing] or favor[ing] communism," the ALA in 1957 adopted a "Statement on Labeling," opposing it as "a censor's tool." Id., pt. 1, pp. 18-19. Again, 10 years later, the ALA even adopted a statement against any restriction on access to library materials by minors. It acknowledged that age restrictions were common across the Nation in "a variety of forms, including, among others, restricted reading rooms for adult use only, library cards limiting circulation of some materials to adults only, closed collections for adult use only, and interlibrary loan for adult use only." Id., pt. 1, p. 16. Nevertheless, the ALA opposed all such limitations, saying that "only the parent ... may restrict his children — and only his children — from access to library materials and services." Id., pt. 1, p. 17. And in 1973, the ALA adopted a policy opposing the practice already mentioned, of keeping certain books off the open shelves, available only on specific request. See id., pt. 1, p. 42. The statement conceded that " 'closed shelf,' 'locked case,' 'adults only,' or 'restricted shelf' collections" were "common to many libraries in the United States." Id., pt. 1, p. 43. The ALA nonetheless came out against it, in these terms: "While the limitation differs from direct censorship activities, such as removal of library materials or refusal to purchase certain publications, it nonetheless constitutes censorship, albeit a subtle form." Ibid.6 Amidst these and other ALA statements from the latter half of the 20th century, however, one subject is missing. There is not a word about barring requesting adults from any materials in a library's collection, or about limiting an adult's access based on evaluation of his purposes in seeking materials. If such a practice had survived into the latter half of the 20th century, one would surely find a statement about it from the ALA, which had become the nemesis of anything sounding like censorship of library holdings, as shown by the history just sampled.7 The silence bespeaks an American public library that gives any adult patron any material at hand, and a history without support for the plurality's reading of the First Amendment as tolerating a public library's censorship of its collection against adult enquiry.C Thus, there is no preacquisition scarcity rationale to save library Internet blocking from treatment as censorship, and no support for it in the historical development of library practice. To these two reasons to treat blocking differently from a decision declining to buy a book, a third must be added. Quite simply, we can smell a rat when a library blocks material already in its control, just as we do when a library removes books from its shelves for reasons having nothing to do with wear and tear, obsolescence, or lack of demand. Content-based blocking and removal tell us something that mere absence from the shelves does not. I have already spoken about two features of acquisition decisions that make them poor candidates for effective judicial review. The first is their complexity, the number of legitimate considerations that may go into them, not all pointing one way, providing cover for any illegitimate reason that managed to sneak in. A librarian should consider likely demand, scholarly or esthetic quality, alternative purchases, relative cost, and so on. The second reason the judiciary must by shy about reviewing acquisition decisions is the sheer volume of them, and thus the number that might draw fire. Courts cannot review the administration of every library with a constituent disgruntled that the library fails to buy exactly what he wants to read. After a library has acquired material in the first place, however, the variety of possible reasons that might legitimately support an initial rejection are no longer in play. Removal of books or selective blocking by controversial subject matter is not a function of limited resources and less likely than a selection decision to reflect an assessment of esthetic or scholarly merit. Removal (and blocking) decisions being so often obviously correlated with content, they tend to show up for just what they are, and because such decisions tend to be few, courts can examine them without facing a deluge. The difference between choices to keep out and choices to throw out is thus enormous, a perception that underlay the good sense of the plurality's conclusion in Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 (1982), that removing classics from a school library in response to pressure from parents and school board members violates the Speech Clause.III There is no good reason, then, to treat blocking of adult enquiry as anything different from the censorship it presumptively is. For this reason, I would hold in accordance with conventional strict scrutiny that a library's practice of blocking would violate an adult patron's First and Fourteenth Amendment right to be free of Internet censorship, when unjustified (as here) by any legitimate interest in screening children from harmful material.8 On that ground, the Act's blocking requirement in its current breadth calls for unconstitutional action by a library recipient, and is itself unconstitutional.FOOTNOTESFootnote 1 The Children's Internet Protection Act: Hearing on S. 97 before the Senate Committee on Commerce, Science, and Transportation, 106th Cong., 1st Sess., 49 (1999) (prepared statement of Bruce Taylor, President and Chief Counsel, National Law Center for Children and Families). See also Obscene Material Available Via The Internet: Hearing before the Subcommittee on Telecommunications, Trade, and Consumer Protection of the House Committee on Commerce, 106th Cong., 2d Sess. 1, 27 (2000) (citing D. Burt, Dangerous Access, 2000 Edition: Uncovering Internet Pornography in America's Libraries (2000)) (noting more than 2,000 incidents of patrons, both adults and minors, using library computers to view online pornography, including obscenity and child pornography).Footnote 2 Justice Stevens misapprehends the analysis we must perform to determine whether CIPA exceeds Congress' authority under the Spending Clause. He asks and answers whether it is constitutional for Congress to "impose [CIPA's filtering] requirement" on public libraries, instead of "allowing local decisionmakers to tailor their responses to local problems." Post, at 1 (dissenting opinion). But under our well-established Spending Clause precedent, that is not the proper inquiry. Rather, as the District Court correctly recognized, 201 F. Supp. 2d 401, 453 (ED Pa. 2002), we must ask whether the condition that Congress requires "would ... be unconstitutional" if performed by the library itself. Dole, 830 U. S., at 210. CIPA does not directly regulate private conduct; rather, Congress has exercised its Spending Power by specifying conditions on the receipt of federal funds. Therefore, Dole provides the appropriate framework for assessing CIPA's constitutionality.Footnote 3 Even if appellees had proffered more persuasive evidence that public libraries intended to create a forum for speech by connecting to the Internet, we would hesitate to import "the public forum doctrine ... wholesale into" the context of the Internet. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 749 (1996) (opinion of Breyer, J.). "[W]e are wary of the notion that a partial analogy in one context, for which we have developed doctrines, can compel a full range of decisions in such a new and changing area." Ibid. The dissents agree with the District Court that less restrictive alternatives to filtering software would suffice to meet Congress' goals. Post, at 4 (opinion of Stevens, J.) (quoting 201 F. Supp. 2d, at 410); post, at 4 (opinion of Souter, J.) (quoting 201 F. Supp. 2d, at 422-427). But we require the Government to employ the least restrictive means only when the forum is a public one and strict scrutiny applies. For the reasons stated above, see supra, at 8-10, such is not the case here. In deciding not to collect pornographic material from the Internet, a public library need not satisfy a court that it has pursued the least restrictive means of implementing that decision. In any case, the suggested alternatives have their own drawbacks. Close monitoring of computer users would be far more intrusive than the use of filtering software, and would risk transforming the role of a librarian from a professional to whom patrons turn for assistance into a compliance officer whom many patrons might wish to avoid. Moving terminals to places where their displays cannot easily be seen by other patrons, or installing privacy screens or recessed monitors, would not address a library's interest in preventing patrons from deliberately using its computers to view online pornography. To the contrary, these alternatives would make it easier for patrons to do so.Footnote 4 The dissents argue that overblocking will " 'reduce the adult population ... to reading only what is fit for children.' " Post, at 3, n. 2 (opinion of Stevens, J.) (quoting Butler v. Michigan, 352 U. S. 380, 383 (1957)). See also post, at 3, and n. 2 (citing Ashcroft v. Free Speech Coalition, 535 U. S. 234, 252 (2002); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 814 (2000); and Reno v. American Civil Liberties Union, 521 U. S. 844, 875 (1997)); see post, at 7-8 (opinion of Souter, J.). But these cases are inapposite because they addressed Congress' direct regulation of private conduct, not exercises of its Spending Power.The dissents also argue that because some library patrons would not make specific unblocking requests, the interest of authors of blocked Internet material "in reaching the widest possible audience would be abridged." Post, at 6 (opinion of Stevens, J.); see post, at 13, n. 8 (opinion of Souter, J.). But this mistakes a public library's purpose for acquiring Internet terminals: A library does so to provide its patrons with materials of requisite and appropriate quality, not to create a public forum for Web publishers to express themselves. See supra, at 9-10.Justice Stevens further argues that, because some libraries' procedures will make it difficult for patrons to have blocked material unblocked, CIPA "will create a significant prior restraint on adult access to protected speech." Post, at 6. But this argument, which the District Court did not address, mistakenly extends prior restraint doctrine to the context of public libraries' collection decisions. A library's decision to use filtering software is a collection decision, not a restraint on private speech. Contrary to Justice Stevens' belief, a public library does not have an obligation to add material to its collection simply because the material is constitutionally protected.Footnote 5 See 20 U. S. C. §9121 ("It is the purpose of [LSTA] (2) to stimulate excellence and promote access to learning and information resources in all types of libraries for individuals of all ages"); S. Conf. Rep. No. 104-230, p. 132 (1996) (The E-rate program "will help open new worlds of knowledge, learning and education to all Americans ... . [It is] intended, for example, to provide the ability to browse library collections, review the collections of museums, or find new information on the treatment of an illness, to Americans everywhere via ... libraries").Footnote 6 These holdings, which Justice Stevens ignores, also make clear that his reliance on Rutan v. Republican Party of Ill., 497 U. S. 62 (1990), Elrod v. Burns, 427 U. S. 347 (1976), and Wieman v. Updegraff, 344 U. S. 183 (1952), is misplaced. See post, at 8. The invalidated state action in those cases involved true penalties, such as denial of a promotion or outright discharge from employment, not nonsubsidies.Footnote 7 Relying on Velazquez, Justice Stevens argues mistakenly that Rust is inapposite because that case "only involved and only applies to ... situations in which the government seeks to communicate a specific message," post, at 9, and unlike the Title X program in Rust, the E-rate and LSTA programs "are not designed to foster or transmit any particular governmental message." Post, at 10. But he misreads our cases discussing Rust, and again misapprehends the purpose of providing Internet terminals in public libraries. Velazquez held only that viewpoint-based restrictions are improper " 'when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.' " 515 U. S. 819, 834 (1995) (emphasis added)). See also 529 U. S. 217, 229 (2000) (" The University of Wisconsin exacts the fee at issue for the sole purpose of facilitating the free and open exchange of ideas"); Rosenberger, supra, at 830, 834 (" The [Student Activities Fund] is a forum"; "[T]he University ... expends funds to encourage a diversity of views from private speakers"). Indeed, this very distinction led us to state in Southworth that that case did not implicate our unconstitutional conditions jurisprudence. 529 U. S., at 229 ("The case we decide here ... does not raise the issue of the government's right ... to use its own funds to advance a particular message"). As we have stated above, supra, at 9-10, public libraries do not install Internet terminals to provide a forum for Web publishers to express themselves, but rather to provide patrons with online material of requisite and appropriate quality.FOOTNOTESFootnote 1 "The percentage of Web pages on the indexed Web containing sexually explicit content is relatively small. Recent estimates indicate that no more than 1-2% of the content on the Web is pornographic or sexually explicit. However, the absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites." 201 F. Supp. 2d. 401, 419 (ED Pa. 2002).Footnote 2 We have repeatedly reaffirmed the holding in Butler v. Michigan, that the State may not "reduce the adult population ... to reading only what is fit for children." See Ashcroft v. Free Speech Coalition ("[T]he objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative"); Reno v. American Civil Liberties Union ("[T]he governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults").Footnote 3 "Indeed, federal or state mandates in this area are unnecessary and unwise. Locally designed solutions are likely to best meet local circumstances. Local decision makers and library boards, responding to local concerns and the prevalence of the problem in their own libraries, should decide if minors' Internet access requires filters. They are the persons in the best position to judge local community standards for what is and is not obscene, as required by the Miller [v. California, 413 U. S. 15 (1973)] test. Indeed, one nationwide solution is not needed, as the problems are local and, to some extent, uniquely so. Libraries in rural communities, for instance, have reported much less of a problem than libraries in urban areas. A library in a rural community with only one or two computers with Internet access may find that even the limited filtering advocated here provides little or no additional benefit. Further, by allowing the nation's public libraries to develop their own approaches, they may be able to develop a better understanding of what methods work well and what methods add little or nothing, or are even counter-productive. Imposing a mandatory nationwide solution may well impede developing truly effective approaches that do not violate the First Amendment. The federal and state governments can best assist this effort by providing libraries with sufficient funding to experiment with a variety of constitutionally permissible approaches." Laughlin, Sex, Lies, and Library Cards: The First Amendment Implications of the Use of Software Filters to Control Access to Internet Pornography in Public Libraries, 51 Drake L. Rev. 213, 279 (2003).Footnote 4 See also J. Boyer, Academic Freedom and the Modern University: The Experience of the University of Chicago 95 (2002) ("The right to speak, to write, and to teach freely is a precious right, one that the American research universities over the course of the twentieth century have slowly but surely made central to the very identity of the university in the modern world").Footnote 5 Contrary to the plurality's narrow reading, Velazquez is not limited to instances in which the recipient of Government funds might be "pit[ted]" against the Government. See ante, at 16. To the contrary, we assessed the issue in Velazquez by turning to, and harmonizing it with, our prior unconstitutional condition cases in the First Amendment context. See 531 U. S., at 543-544.Footnote 6 See id., at 541 (distinguishing Rust on the ground that "the counseling activities of the doctors ... amounted to governmental speech"); Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229 (2000) (unlike Rust, "the issue of the government's right ... to use its own funds to advance a particular message" was not presented); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 834 (1995) (Rust is inapplicable where the government "does not it-self speak or subsidize transmittal of a message it favors but in-stead expends funds to encourage a diversity of views from private speakers").Footnote 7 Thus, respondents are not merely challenging a "refusal to fund protected activity, without more," as in Harris v. McRae, 448 U. S. 297, 317, n. 19 (1980), or a "decision not to subsidize the exercise of a fundamental right," as in Regan v. Taxation With Representation of Wash., 461 U. S. 540, 549 (1983). They are challenging a restriction that applies to property that they acquired without federal assistance. FOOTNOTESFootnote 1 If the Solicitor General's representation turns out to be honored in the breach by local libraries, it goes without saying that our decision today would not foreclose an as-applied challenge. See also ante, at 5-6 (Breyer, J., concurring in judgment); ante, at 1 (Kennedy, J., concurring in judgment).Footnote 2 Among other things, the plurality's reasoning ignores the widespread utilization of interlibrary loan systems. See 201 F. Supp. 2d 401, 421 (ED Pa. 2002). With interlibrary loan, virtually any book, say, is effectively made available to a library's patrons. If, therefore, a librarian refused to get a book from interlibrary loan for an adult patron on the ground that the patron's "purpose" in seeking the book was not acceptable, the librarian could find no justification in the fact that libraries have traditionally "collect[ed] only those materials deemed to have 'requisite and appropriate quality.' " Ante, at 6-7. In any event, in the ensuing analysis, I assume for the sake of argument that we are in a world without interlibrary loan.Footnote 3 Of course, a library that allowed its patrons to use computers for any purposes might feel the need to purchase more computers to satisfy what would presumably be greater demand, see Brief for Appellants 23, but the answer to that problem would be to limit the number of unblocked terminals or the hours in which they could be used. In any event, the rationale for blocking has no reference whatever to scarcity.Footnote 4 That is, libraries do not refuse materials to adult patrons on account of their content. Of course, libraries commonly limit access on content-neutral grounds to, say, rare or especially valuable materials. Such practices raise no First Amendment concerns, because they have nothing to do with suppressing ideas.Footnote 5 See, e.g., M. Fiske, Book Selection and Censorship: A Study of School and Public Libraries in California 69-73 (1959); Moon, "Problem" Fiction, in Book Selection and Censorship in the Sixties 56-58 (E. Moon ed. 1969); F. Jones, Defusing Censorship: The Librarian's Guide to Handling Censorship Conflicts 92-99 (1983); see also The Censorship of Books 173-182 (W. Daniels ed. 1954).Footnote 6 For a complete listing of the ALA's Interpretations, see R. Peck, Libraries, the First Amendment and Cyberspace: What You Need to Know 148-175 (2000).Footnote 7 Thus, it is not surprising that, with the emergence of the circumstances giving rise to this case, the ALA has adopted statements opposing restrictions on access to adult patrons, specific to electronic media like the Internet. See id., at 150-153, 176-179, 180-187.Footnote 8 I assume, although there is no occasion here to decide, that the originators of the material blocked by the Internet filters could object to the wall between them and any adult audience they might attract, although they would be unlikely plaintiffs, given that their private audience would be unaffected by the library's action, and many of them might have no more idea that a library is blocking their work than the library does. It is for this reason that I rely on the First and Fourteenth Amendment rights of adult library patrons, who would experience the more acute injury by being denied a look at anything the software identified as apt to harm a child (and whatever else got blocked along with it). In practical terms, if libraries and the National Government are going to be kept from engaging in unjustifiable adult censorship, there is no alternative to recognizing a viewer's or reader's right to be free of paternalistic censorship as at least an adjunct of the core right of the speaker. The plurality in Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 (1982), saw this and recognized the right of students using a school library to object to the removal of disfavored books from the shelves, id., at 865-868 (opinion of Brennan, J.). By the same token, we should recognize an analogous right on the part of a library's adult Internet users, who may be among the 10% of American Internet users whose access comes solely through library terminals, see 201 F. Supp. 2d, at 422. There should therefore be no question that censorship by blocking produces real injury sufficient to support a suit for redress by patrons whose access is denied. |
0 | Petitioner was convicted in a North Carolina court of first-degree murder. In the trial's sentencing phase, the jury made a binding recommendation of death after finding unanimously, as required by instructions given both orally and in a written verdict form: (1) the existence of two statutory aggravating circumstances; (2) the existence of two of eight possible mitigating circumstances; (3) that the mitigating circumstances found were insufficient to outweigh the aggravating circumstances found; and (4) that the aggravating circumstances found were sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstances found. The State Supreme Court rejected petitioner's challenge to his sentence, distinguishing Mills v. Maryland, . In Mills, this Court reversed a death sentence imposed under Maryland's capital punishment scheme because that scheme precluded a jury from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular circumstance supported by that evidence. In contrast to the Maryland procedure, which required the jury to impose a death penalty if it found at least one aggravating circumstance and no mitigating circumstances or unanimously agreed that the mitigating circumstances did not outweigh the aggravating ones, the court emphasized that Issue Four in North Carolina's scheme allowed the jury to recommend life imprisonment if it felt that the aggravating circumstances did not call for the death penalty even if it had found several aggravating circumstances and no mitigating ones. The court also reasoned that whereas in Maryland's scheme evidence remained "legally relevant" as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, in North Carolina's system any evidence introduced to support a mitigating factor that the jury did not unanimously find is legally "irrelevant" and can be excluded from jurors' consideration.Held: North Carolina's unanimity requirement impermissibly limits jurors' consideration of mitigating evidence and hence is contrary to this Court's decision in Mills, supra. The State's Issue Four does not ameliorate the constitutional infirmity created by the requirement. Although the jury can opt for life imprisonment without finding any mitigating circumstances, it is required to make its decision based only on the circumstances it unanimously finds in Issue Two. Thus, one holdout juror can prevent the others from giving effect to evidence they feel calls for a lesser sentence; moreover, even if all the jurors agree that there are some mitigating circumstances, they cannot give effect to evidence supporting any of those circumstances unless they agree unanimously on the same circumstance. In addition, the state court's holding distorts the concept of relevance. The mitigating circumstances not unanimously found to be present by the jury did not become "irrelevant" to mitigation merely because one or more jurors either did not believe that the circumstance had been proved as a factual matter or did not think that the circumstance, though proved, mitigated the offense. Furthermore, the mere declaration that evidence is "legally irrelevant" cannot bar the consideration of that evidence if the sentence could reasonably find that it warrants a sentence less that death. Skipper v. South Carolina, ; Eddings v. Oklahoma, . The State misplaces its reliance on Patterson v. New York, , to support its view that the unanimity requirement is a standard of proof intended to ensure the reliability of mitigating evidence, as Patterson did not involve the validity of a capital sentencing procedure under the Eighth Amendment, which requires States to allow consideration of mitigating evidence. It is no answer that the jury is permitted to "consider" mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a death sentence, a consideration that may not be foreclosed by one or more jurors' failure to find a mitigating circumstance under Issue Two. Moreover, requiring unanimity on mitigating factors is not constitutional merely because the State also requires unanimity on aggravating circumstances. Penry v. Lynaugh, . Pp. 439-444. 323 N.C. 1, 372 S. E. 2d 12, vacated and remanded.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., post, p. 444, and BLACKMUN, J., post, p. 445, filed concurring opinions. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 452. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR, J., joined, post, p. 457.Malcolm Ray Hunter, Jr., argued the cause for petitioner. With him on the briefs were Gordon Widenhouse and Robert S. Mahler.Joan H. Byers, Special Deputy Attorney General of North Carolina, argued the cause for respondent. With her on the brief were Lacy H. Thornburg, Attorney General, J. Michael Carpenter, Special Deputy Attorney General, and Steven F. Bryant and Barry S. McNeill, Assistant Attorneys General.* [Footnote *] A brief of amici curiae urging affirmance was filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Herbert F. Wilkinson and Dane R. Gillette, Deputy Attorneys General, joined by Don Siegelman. Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John J. Kelly, Chief State's Attorney of Connecticut, Michael J. Bowers, Attorney General of Georgia, James T. Jones, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Frederic J. Cowan, Attorney General of Kentucky, William L. Webster, Attorney General of Missouri, Michael C. Moore, Attorney General of Mississippi, Brian McKay, Attorney General of Nevada, Peter N. Perretti, Jr., Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Robert H. Henry, Attorney General of Oklahoma, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Jim Mattox, Attorney General of Texas, and Mary Sue Terry, Attorney General of Virginia.JUSTICE MARSHALL delivered the opinion of the Court.In this case we address the constitutionality of the unanimity requirement in North Carolina's capital sentencing scheme. That requirement prevents the jury from considering, in deciding whether to impose the death penalty, any mitigating factor that the jury does not unanimously find. We hold that under our decision in Mills v. Maryland, , North Carolina's unanimity requirement violates the Constitution by preventing the sentencer from considering all mitigating evidence. We therefore vacate petitioner's death sentence and remand for resentencing.IPetitioner Dock McKoy, Jr., was convicted in Stanly County, North Carolina, of first-degree murder. During the sentencing phase of McKoy's trial, the trial court instructed the jury, both orally and in a written verdict form, to answer four questions in determining its sentence. Issue One asked: "Do you unanimously find from the evidence, beyond a reasonable doubt, the existence of one or more of the following aggravating circumstances?" App. 6, 23. The jury found two statutory aggravating circumstances: that McKoy "had been previously convicted of a felony involving the use or threat of violence to the person"1 and that the murder was committed against a deputy sheriff who was "engaged in the performance of his official duties."2 The jury therefore answered "Yes" to Issue One and was instructed to proceed to the next Issue.Issue Two asked: "Do you unanimously find from the evidence the existence of one or more of the following mitigating circumstances?" Id., at 8, 24. The judge submitted to the jury eight possible mitigating circumstances. With respect to each circumstance, the judge orally instructed the jury as follows: "If you do not unanimously find this mitigating circumstance by a preponderance of the evidence, so indicate by having your foreman write, `No,' in that space" on the verdict form. Id., at 10-13. The verdict form reiterated the unanimity requirement: "In the space after each mitigating circumstance, write `Yes,' if you unanimously find that mitigating circumstance by a preponderance of the evidence. Write, `No,' if you do not unanimously find that mitigating circumstance by a preponderance of the evidence." Id., at 24.The jury unanimously found the statutory mitigating circumstance that McKoy's capacity "to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired."3 It also unanimously found the nonstatutory mitigating circumstance that McKoy had a "borderline intellectual functioning with a IQ test score of 74." Id., at 25. The jury did not, however, unanimously find the statutory mitigating circumstances that McKoy committed the crime while "under the influence of mental or emotional disturbance"4 or that McKoy's age at the time of the crime, 65, was a mitigating factor.5 The jury also failed to find unanimously four nonstatutory mitigating circumstances: that for several decades McKoy exhibited signs of mental or emotional disturbance or defect that went untreated; that McKoy's mental and emotional disturbance was aggravated by his poor physical health; that McKoy's ability to remember the events of the day of the murder was actually impaired; and that there was any other circumstance arising from the evidence that had mitigating value.6 Because the jury found the existence of mitigating circumstances, it was instructed to answer Issue Three, which asked: "Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found by you?" Id., at 13, 26 (emphasis added). The jury answered this issue "Yes," and so proceeded to the final issue. Issue Four asked: "Do you unanimously find beyond a reasonable doubt that the aggravating circumstance or circumstances found by you is, or are, sufficiently substantial to call for the imposition of the death penalty when considered with the mitigating circumstance or circumstances found by you?" Id., at 14, 26 (emphasis added). The jury again responded "Yes." Pursuant to the verdict form and the court's instructions, the jury therefore made a binding recommendation of death.During the pendency of petitioner's direct appeal to the North Carolina Supreme Court, this Court decided Mills v. Maryland, supra. There, we reversed a death sentence imposed under Maryland's capital punishment scheme because the jury instructions and verdict form created "a substantial probability that reasonable jurors ... well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance." Id., at 384. We reasoned that allowing a "holdout" juror to prevent the other jurors from considering mitigating evidence violated the principle established in Lockett v. Ohio, , that a sentence may not be precluded from giving effect to all mitigating evidence. 486 U.S., at 375.Petitioner challenged his sentence on the basis of Mills. The North Carolina Supreme Court, in a split decision, purported to distinguish Mills on two grounds and therefore denied relief. First, it noted that "Maryland's procedure required the jury to impose the death penalty if it `found' at least one aggravating circumstance and did not `find' any mitigating circumstances" or "if it unanimously found that the mitigating circumstances did not out weigh the aggravating circumstances." 323 N.C. 1, 40, 372 S. E. 2d 12, 33 (1988). In contrast, the court stated, Issue Four in North Carolina's scheme allows the jury to recommend life imprisonment "if it feels that the aggravating circumstances are not sufficiently substantial to call for the death penalty, even if it has found several aggravating circumstances and no mitigating circumstances." Ibid.Second, the court asserted that whereas in Maryland's scheme evidence remained "legally relevant" as long as one or more jurors found the presence of a mitigating circumstance supported by that evidence, id., at 41, 372 S. E. 2d, at 34, "in North Carolina evidence in effect becomes legally irrelevant to prove mitigation if the defendant fails to prove to the satisfaction of all the jurors that such evidence supports the finding of a mitigating factor," id., at 40, 372 S. E. 2d, at 33. The North Carolina Supreme Court believed that we had found the "relevance" of the evidence in Mills a significant factor because we had stated in a footnote that "`[n]o one has argued here, nor did the Maryland Court of Appeals suggest, that mitigating evidence can be rendered legally "irrelevant" by one holdout vote.'" Id., at 41, 372 S. E. 2d, at 34 (quoting Mills, 486 U.S., at 375, n. 7). The court thus interpreted Mills as allowing States to define as "irrelevant" and to exclude from jurors' consideration any evidence introduced to support a mitigating circumstance that the jury did not unanimously find. Accordingly, the State Supreme Court upheld McKoy's death sentence.IIDespite the state court's inventive attempts to distinguish Mills, our decision there clearly governs this case. First, North Carolina's Issue Four does not ameliorate the constitutional infirmity created by the unanimity requirement. Issue Four, like Issue Three, allows the jury to consider only mitigating factors that it unanimously finds under Issue Two. Although the jury may opt for life imprisonment even where it fails unanimously to find any mitigating circumstances, the fact remains that the jury is required to make its decision based only on those circumstances it unanimously finds. The unanimity requirement thus allows one holdout juror to prevent the others from giving effect to evidence that they believe calls for a "`sentence less than death.'" Eddings v. Oklahoma, , quoting Lockett, supra, at 604 (plurality opinion). Moreover, even if all 12 jurors agree that there are some mitigating circumstances, North Carolina's scheme prevents them from giving effect to evidence supporting any of those circumstances in their deliberations under Issues Three and Four unless they unanimously find the existence of the same circumstance. This is the precise defect that compelled us to strike down the Maryland scheme in Mills. See 486 U.S., at 374. Our decision in Mills was not limited to cases in which the jury is required to impose the death penalty if it finds that aggravating circumstances outweigh mitigating circumstances or that no mitigating circumstances exist at all. Rather, we held that it would be the "height of arbitrariness to allow or require the imposition of the death penalty" where 1 juror was able to prevent the other 11 from giving effect to mitigating evidence. Ibid. (emphasis added).Second, the State Supreme Court's holding that mitigating evidence is "relevant" only if the jury unanimously finds that it proves the existence of a mitigating circumstance distorts the concept of relevance. "[I]t is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" New Jersey v. T. L. O., , quoting Fed. Rule Evid. 401. The meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding. As the Chief Justice of the North Carolina Supreme Court stated in dissent in this case:"Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Whether the fact-finder accepts or rejects the evidence has no bearing on the evidence's relevancy. The relevance exists even if the fact-finder fails to be persuaded by that evidence. It is not necessary that the item of evidence alone convinces the trier of fact or be sufficient to convince the trier of fact of the truth of the proposition for which it is offered." 323 N.C., at 55-56, 372 S. E. 2d, at 45 (Exum, C. J., dissenting), citing M. Graham, Handbook of Federal Evidence 401.1, n. 12 (2d ed. 1986). Clearly, then, the mitigating circumstances not unanimously found to be present by the jury did not become "irrelevant" to mitigation merely because one or more jurors either did not believe that the circumstance had been proved as a factual matter or did not think that the circumstance, though proved, mitigated the offense.7 Furthermore, our holdings in Skipper v. South Carolina, , and Eddings v. Oklahoma, supra, show that the mere declaration that evidence is "legally irrelevant" to mitigation cannot bar the consideration of that evidence if the sentence could reasonably find that it warrants a sentence less than death. In Skipper, the trial court had excluded as irrelevant to mitigation evidence that the defendant had adjusted well to prison life. This Court reversed the death sentence on the ground that such evidence was "by its nature relevant to the sentencing determination" because it might convince the jury that the defendant "would pose no undue danger to his jailers or fellow prisoners and could lead a useful life behind bars if sentenced to life imprisonment." 476 U.S., at 7. Similarly, in Eddings, the sentencing court had ruled that it was precluded by law from considering evidence of the defendant's troubled childhood and emotional disturbance. The State Court of Criminal Appeals affirmed, holding that such evidence was irrelevant to mitigation because it did not support a legal excuse from criminal liability. This Court reversed on the ground that such evidence was undoubtedly relevant to mitigation even if it did not excuse the defendant's conduct. 455 U.S., at 113-116.Nor can the State save the unanimity requirement by characterizing it as a standard of proof intended to ensure the reliability of mitigating evidence. The State's reliance on Patterson v. New York, , is misplaced. In that case, this Court rejected a due process challenge to a New York law requiring a defendant charged with second-degree murder to prove by a preponderance of the evidence the affirmative defense of extreme emotional disturbance in order to reduce the crime to manslaughter. The Court reasoned that a State is not constitutionally required to provide that affirmative defense. But if a State "nevertheless chooses to recognize a factor that mitigates the degree of criminality or punishment, ... the State may assure itself that the fact has been established with reasonable certainty." Id., at 209. Patterson, however, did not involve the validity of a capital sentencing procedure under the Eighth Amendment. The Constitution requires States to allow consideration of mitigating evidence in capital cases. Any barrier to such consideration must therefore fall. As we stated in Mills:"Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra; Hitchcock v. Dugger, ; by the sentencing court, Eddings v. Oklahoma, supra; or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror's holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, ... the conclusion would necessarily be the same: `Because the [sentencer's] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.' Eddings v. Oklahoma, 455 U.S., at 117, n. (O'CONNOR, J., concurring)." 486 U.S., at 375. It is no answer, of course, that the jury is permitted to "consider" mitigating evidence when it decides collectively, under Issue Two, whether any mitigating circumstances exist. Rather, Mills requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that, in North Carolina's system, each juror must be allowed to consider all mitigating evidence in deciding Issues Three and Four: whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death. Under Mills, such consideration of mitigating evidence may not be foreclosed by one or more jurors' failure to find a mitigating circumstance under Issue Two.Finally, we reject the State's contention that requiring unanimity on mitigating circumstances is constitutional because the State also requires unanimity on aggravating circumstances. The Maryland scheme in Mills also required unanimity on both mitigating and aggravating circumstances. See id., at 384-389. Such consistent treatment did not, however, save the unanimity requirement for mitigating circumstances in that case. A State may not limit a sentencer's consideration of mitigating evidence merely because it places the same limitation on consideration of aggravating circumstances. As the Court stated in Penry v. Lynaugh, : "`In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.' McCleskey v. Kemp, (emphasis in original). Indeed, it is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense." Id., at 327-328. IIIWe conclude that North Carolina's unanimity requirement impermissibly limits jurors' consideration of mitigating evidence and hence is contrary to our decision in Mills.8 We therefore vacate the petitioner's death sentence and remand this case to the North Carolina Supreme Court for further proceedings not inconsistent with this opinion. It is so ordered. |
11 | Respondent Gary Woods and his employer, Billy Joe McCombs, participated in an offsetting-option tax shelter designed to generate large paper losses that they could use to reduce their taxable income. To that end, they purchased from Deutsche Bank a series of currency-option spreads. Each spread was a package consisting of a long option, which Woods and McCombs purchased from Deutsche Bank and for which they paid a premium, and a short option, which Woods and McCombs sold to Deutsche Bank and for which they received a premium. Because the premium paid for the long option was largely offset by the premium received for the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Woods and McCombs contributed the spreads, along with cash, to two partnerships, which used the cash to purchase stock and currency. When calculating their basis in the partnership interests, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offsetting short component. As a result, when the partnerships' assets were disposed of for modest gains, Woods and McCombs claimed huge losses. Al-though they had contributed roughly $3.2 million in cash and spreads to the partnerships, they claimed losses of more than $45 million. The Internal Revenue Service sent each partnership a Notice of Final Partnership Administrative Adjustment, disregarding the partnerships for tax purposes and disallowing the related losses. It concluded that the partnerships were formed for the purpose of tax avoidance and thus lacked "economic substance," i.e., they were shams. As there were no valid partnerships for tax purposes, the IRS determined that the partners could not claim a basis for their partnership interests greater than zero and that any resulting tax underpayments would be subject to a 40-percent penalty for gross valuation misstatements. Woods sought judicial review. The District Court held that the partnerships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Fifth Circuit affirmed.Held: 1. The District Court had jurisdiction to determine whether the partnerships' lack of economic substance could justify imposing a valuation-misstatement penalty on the partners. Pp. 6-11. (a) Because a partnership does not pay federal income taxes, its taxable income and losses pass through to the partners. Under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), the IRS initiates partnership-related tax proceedings at the partnership level to adjust "partnership items," i.e., items relevant to the partnership as a whole. 26 U. S. C. §§6221, 6231(a)(3). Once the adjustments become final, the IRS may undertake further proceedings at the partner level to make any resulting "computational adjustments" in the tax liability of the individual partners. §§6230(a)(1)-(2), (c), 6231(a)(6). Pp. 6-7. (b) Under TEFRA's framework, a court in a partnership-level proceeding has jurisdiction to determine "the applicability of any penalty . . . which relates to an adjustment to a partnership item." §6226(f). A determination that a partnership lacks economic substance is such an adjustment. TEFRA authorizes courts in partnership-level proceedings to provisionally determine the applicability of any penalty that could result from an adjustment to a partnership item, even though imposing the penalty requires a subsequent, partner-level proceeding. In that later proceeding, each partner may raise any reasons why the penalty may not be imposed on him specifically. Applying those principles here, the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty. Pp. 7-11. 2. The valuation-misstatement penalty applies in this case. Pp. 11-16. (a) A penalty applies to the portion of any underpayment that is "attributable to" a "substantial" or "gross" "valuation misstatement," which exists where "the value of any property (or the adjusted basis of any property) claimed on any return of tax" exceeds by a specified percentage "the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be)." §§6662(a), (b)(3), (e)(1)(A), (h). The penalty's plain language makes it applicable here. Once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim a basis in his partnership interest greater than zero. Any underpayment resulting from use of a non-zero basis would therefore be "attributable to" the partner's having claimed an "adjusted basis" in the partnerships that exceeded "the correct amount of such . . . adjusted basis." §6662(e)(1)(A). And under the relevant Treasury Regulation, when an asset's adjusted basis is zero, a valuation misstatement is automatically deemed gross. Pp. 11-12. (b) Woods' contrary arguments are unpersuasive. The valuation-misstatement penalty encompasses misstatements that rest on legal as well as factual errors, so it is applicable to misstatements that rest on the use of a sham partnership. And the partnerships' lack of economic substance is not an independent ground separate from the misstatement of basis in this case. Pp. 12-16.471 Fed. Appx. 320, reversed. Scalia, J., delivered the opinion for a unanimous Court.Opinion of the Court 571 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-562UNITED STATES, PETITIONER v. GARY WOODSon writ of certiorari to the united states court of appeals for the fifth circuit[December 3, 2013] Justice Scalia delivered the opinion of the Court. We decide whether the penalty for tax underpayments attributable to valuation misstatements, 26 U. S. C. §6662(b)(3), is applicable to an underpayment resulting from a basis-inflating transaction subsequently disregarded for lack of economic substance.I. The FactsA This case involves an offsetting-option tax shelter, variants of which were marketed to high-income taxpayers in the late 1990's. Tax shelters of this type sought to generate large paper losses that a taxpayer could use to reduce taxable income. They did so by attempting to give the tax-payer an artificially high basis in a partnership interest, which enabled the taxpayer to claim a significant tax loss upon disposition of the interest. See IRS Notice 2000-44, 2000-2 Cum. Bull. 255 (describing offsetting-option tax shelters). The particular tax shelter at issue in this case was developed by the now-defunct law firm Jenkens & Gilchrist and marketed by the accounting firm Ernst & Young under the name "Current Options Bring Reward Alternatives," or COBRA. Respondent Gary Woods and his employer, Billy Joe McCombs, agreed to participate in COBRA to reduce their tax liability for 1999. To that end, in November 1999 they created two general partnerships: one, Tesoro Drive Partners, to produce ordinary losses, and the other, SA Tesoro Investment Partners, to produce capital losses. Over the next two months, acting through their respective wholly owned, limited liability companies, Woods and McCombs executed a series of transactions. First, they purchased from Deutsche Bank five 30-day currency-option spreads. Each of these option spreads was a package consisting of a so-called long option, which entitled Woods and McCombs to receive a sum of money from Deutsche Bank if a certain currency exchange rate exceeded a certain figure on a certain date, and a so-called short option, which entitled Deutsche Bank to receive a sum of money from Woods and McCombs if the exchange rate for the same currency on the same date exceeded a certain figure so close to the figure triggering the long option that both were likely to be triggered (or not to be triggered) on the fated date. Because the premium paid to Deutsche Bank for purchase of the long option was largely offset by the premium received from Deutsche Bank for sale of the short option, the net cost of the package to Woods and McCombs was substantially less than the cost of the long option alone. Specifically, the premiums paid for all five of the spreads' long options totaled $46 million, and the premiums received for the five spreads' short options totaled $43.7 million, so the net cost of the spreads was just $2.3 million. Woods and McCombs contributed the spreads to the partnerships along with about $900,000 in cash. The partnerships used the cash to purchase assets — Canadian dollars for the partnership that sought to produce ordinary losses, and Sun Microsystems stock for the partnership that sought to produce capital losses. The partnerships then terminated the five option spreads in exchange for a lump-sum payment from Deutsche Bank. As the tax year drew to a close, Woods and McCombs transferred their interests in the partnerships to two S corporations. One corporation, Tesoro Drive Investors, Inc., received both partners' interests in Tesoro Drive Partners; the other corporation, SA Tesoro Drive Investors, Inc., received both partners' interests in SA Tesoro Investment Partners. Since this left each partnership with only a single partner (the relevant S corporation), the partnerships were liquidated by operation of law, and their assets — the Canadian dollars and Sun Microsystems stock, plus the remaining cash — were deemed distributed to the corporations. The corporations then sold those assets for modest gains of about $2,000 on the Canadian dollars and about $57,000 on the stock. But instead of gains, the corporations reported huge losses: an ordinary loss of more than $13 million on the sale of the Canadian dollars and a capital loss of more than $32 million on the sale of the stock. The losses were allocated between Woods and McCombs as the corporations' co-owners. The reason the corporations were able to claim such vast losses — the alchemy at the heart of an offsetting-options tax shelter — lay in how Woods and McCombs calculated the tax basis of their interests in the partnerships. Tax basis is the amount used as the cost of an asset when computing how much its owner gained or lost for tax purposes when disposing of it. See J. Downes & J. Goodman, Dictionary of Finance and Investment Terms 736 (2010). A partner's tax basis in a partnership interest — called "outside basis" to distinguish it from "inside basis," the partnership's basis in its own assets — is tied to the value of any assets the partner contributed to acquire the interest. See 26 U. S. C. §722. Collectively, Woods and McCombs contributed roughly $3.2 million in option spreads and cash to acquire their interests in the two partnerships. But for purposes of computing outside basis, Woods and McCombs considered only the long component of the spreads and disregarded the nearly offset-ting short component on the theory that it was "too contingent" to count. Brief for Respondent 14. As a result, they claimed a total adjusted outside basis of more than $48 million. Since the basis of property distributed to a partner by a liquidating partnership is equal to the adjusted basis of the partner's interest in the partnership (reduced by any cash distributed with the property), see §732(b), the inflated outside basis figure was carried over to the S corporations' basis in the Canadian dollars and the stock, enabling the corporations to report enormous losses when those assets were sold. At the end of the day, Woods' and McCombs' $3.2 million investment generated tax losses that, if treated as valid, could have shielded more than $45 million of income from taxation.B The Internal Revenue Service, however, did not treat the COBRA-generated losses as valid. Instead, after auditing the partnerships' tax returns, it issued to each partnership a Notice of Final Partnership Administrative Adjustment, or "FPAA." In the FPAAs, the IRS determined that the partnerships had been "formed and availed of solely for purposes of tax avoidance by artificially overstating basis in the partnership interests of [the] purported partners." App. 92, 146. Because the partnerships had "no business purpose other than tax avoidance," the IRS said, they "lacked economic substance"--or, put more starkly, they were "sham[s]"--so the IRS would disregard them for tax purposes and disallow the related losses. Ibid. And because there were no valid partnerships for tax purposes, the IRS determined that the partners had "not established adjusted bases in their respective partnership interests in an amount greater than zero," id., at 95, ¶7, 149, ¶7 so that any resulting tax underpayments would be subject to a 40-percent penalty for gross valuation misstatements, see 26 U. S. C. §6662(b)(3). Woods, as the tax-matters partner for both partnerships, sought judicial review of the FPAAs pursuant to §6226(a). The District Court held that the partnerships were properly disregarded as shams but that the valuation-misstatement penalty did not apply. The Govern-ment appealed the decision on the penalty to the Court of Appeals for the Fifth Circuit. While the appeal was pending, the Fifth Circuit held in a similar case that, under Circuit precedent, the valuation-misstatement penalty does not apply when the relevant transaction is disregarded for lacking economic substance. Bemont Invs., LLC v. United States, 679 F. 3d 339, 347-348 (2012). In a concurrence joined by the other members of the panel, Judge Prado acknowledged that this rule was binding Circuit law but suggested that it was mistaken. See id., at 351-355. A different panel subsequently affirmed the District Court's decision in this case in a one-paragraph opinion, declaring the issue "well settled." 471 Fed. Appx. 320 (per curiam), reh'g denied (2012).1 We granted certiorari to resolve a Circuit split over whether the valuation-misstatement penalty is applicable in these circumstances. 569 U. S. ___ (2013). See Bemont, supra, at 354-355 (Prado, J., concurring) (recognizing "near-unanimous opposition" to the Fifth Circuit's rule). Because two Courts of Appeals have held that District Courts lacked jurisdiction to consider the valuation-misstatement penalty in similar circumstances, see Jade Trading, LLC v. United States, 598 F. 3d 1372, 1380 (CA Fed. 2010); Petaluma FX Partners, LLC v. Commissioner, 591 F. 3d 649, 655-656 (CADC 2010), we ordered briefing on that question as well.II. District-Court JurisdictionA We begin with a brief explanation of the statutory scheme for dealing with partnership-related tax matters. A partnership does not pay federal income taxes; instead, its taxable income and losses pass through to the partners. 26 U. S. C. §701. A partnership must report its tax items on an information return, §6031(a), and the partners must report their distributive shares of the partnership's tax items on their own individual returns, §§702, 704. Before 1982, the IRS had no way of correcting errors on a partnership's return in a single, unified proceeding. Instead, tax matters pertaining to all the members of a partnership were dealt with just like tax matters pertaining only to a single taxpayer: through deficiency proceedings at the individual-taxpayer level. See generally §§6211-6216 (2006 ed. and Supp. V). Deficiency proceedings require the IRS to issue a separate notice of deficiency to each taxpayer, §6212(a) (2006 ed.), who can file a petition in the Tax Court disputing the alleged deficiency before paying it, §6213(a). Having to use deficiency proceedings for partnership-related tax matters led to du-plicative proceedings and the potential for inconsistent treatment of partners in the same partnership. Congress addressed those difficulties by enacting the Tax Treatment of Partnership Items Act of 1982, as Title IV of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). 96 Stat. 648 (codified as amended at 26 U. S. C. §§6221-6232 (2006 ed. and Supp. V)). Under TEFRA, partnership-related tax matters are addressed in two stages. First, the IRS must initiate proceedings at the partnership level to adjust "partnership items," those relevant to the partnership as a whole. §§6221, 6231(a)(3). It must issue an FPAA notifying the partners of any adjustments to partnership items, §6223(a)(2), and the partners may seek judicial review of those adjustments, §6226(a)-(b). Once the adjustments to partnership items have become final, the IRS may undertake further proceedings at the partner level to make any resulting "computational adjustments" in the tax liability of the individual partners. §6231(a)(6). Most computational adjustments may be directly assessed against the partners, bypassing deficiency proceedings and permitting the partners to challenge the assessments only in post-payment refund actions. §6230(a)(1), (c). Deficiency proceedings are still required, however, for certain com-putational adjustments that are attributable to "affected items," that is, items that are affected by (but are not themselves) partnership items. §§6230(a)(2)(A)(i), 6231(a)(5).B Under the TEFRA framework, a court in a partnership-level proceeding like this one has jurisdiction to determine not just partnership items, but also "the applicability of any penalty . . . which relates to an adjustment to a partnership item." §6226(f). As both sides agree, a determination that a partnership lacks economic substance is an adjustment to a partnership item. Thus, the jurisdictional question here boils down to whether the valuation-misstatement penalty "relates to" the determination that the partnerships Woods and McCombs created were shams. The Government's theory of why the penalty was triggered is based on a straightforward relationship between the economic-substance determination and the penalty. In the Government's view, there can be no outside basis in a sham partnership (which, for tax purposes, does not exist), so any partner who underpaid his individual taxes by declaring an outside basis greater than zero committed a valuation misstatement. In other words, the penalty flows logically and inevitably from the economic-substance determination. Woods, however, argues that because outside basis is not a partnership item, but an affected item, a penalty that would rest on a misstatement of outside basis cannot be considered at the partnership level. He maintains, in short, that a penalty does not relate to a partnership-item adjustment if it "requires a partner-level determination," regardless of "whether or not the penalty has a connection to a partnership item." Brief for Respondent 27. Because §6226(f)'s "relates to" language is "essentially indeterminate," we must resolve this dispute by looking to "the structure of [TEFRA] and its other provisions." Maracich v. Spears, 570 U. S. ___, ___ (2013) (slip op., at 9) (internal quotation marks and brackets omitted). That inquiry makes clear that the District Court's jurisdiction is not as narrow as Woods contends. Prohibiting courts in partnership-level proceedings from considering the applicability of penalties that require partner-level inquiries would be inconsistent with the nature of the "applicability" determination that TEFRA requires. Under TEFRA's two-stage structure, penalties for tax underpayment must be imposed at the partner level, because partnerships themselves pay no taxes. And imposing a penalty always requires some determinations that can be made only at the partner level. Even where a partnership's return contains significant errors, a partner may not have carried over those errors to his own return; or if he did, the errors may not have caused him to underpay his taxes by a large enough amount to trigger the penalty; or if they did, the partner may nonetheless have acted in good faith with reasonable cause, which is a bar to the imposition of many penalties, see §6664(c)(1). None of those issues can be conclusively determined at the partnership level. Yet notwithstanding that every pen-alty must be imposed in partner-level proceedings after partner-level determinations, TEFRA provides that the applicability of some penalties must be determined at the partnership level. The applicability determination is therefore inherently provisional; it is always contingent upon determinations that the court in a partnership-level proceeding does not have jurisdiction to make. Barring partnership-level courts from considering the applicability of penalties that cannot be imposed without partner-level inquiries would render TEFRA's authorization to consider some penalties at the partnership level meaningless. Other provisions of TEFRA confirm that conclusion. One requires the IRS to use deficiency proceedings for computational adjustments that rest on "affected items which require partner level determinations (other than penalties . . . that relate to adjustments to partnership items)." §6230(a)(2)(A)(i). Another states that while a partnership-level determination "concerning the applicability of any penalty . . . which relates to an adjustment to a partnership item" is "conclusive" in a subsequent re-fund action, that does not prevent the partner from "assert[ing] any partner level defenses that may apply." §6230(c)(4). Both these provisions assume that a penalty can relate to a partnership-item adjustment even if the penalty cannot be imposed without additional, partner-level determinations. These considerations lead us to reject Woods' interpretation of §6226(f). We hold that TEFRA gives courts in partnership-level proceedings jurisdiction to determine the applicability of any penalty that could result from an adjustment to a partnership item, even if imposing the penalty would also require determining affected or non-partnership items such as outside basis. The partnership-level applicability determination, we stress, is provisional: the court may decide only whether adjustments properly made at the partnership level have the potential to trigger the penalty. Each partner remains free to raise, in subsequent, partner-level proceedings, any reasons why the penalty may not be imposed on him specifically. Applying the foregoing principles to this case, we conclude that the District Court had jurisdiction to determine the applicability of the valuation-misstatement penalty — to determine, that is, whether the partnerships' lack of economic substance (which all agree was properly decided at the partnership level) could justify imposing a valuation-misstatement penalty on the partners. When making that determination, the District Court was obliged to consider Woods' arguments that the economic-substance determination was categorically incapable of triggering the penalty. Deferring consideration of those arguments until partner-level proceedings would replicate the precise evil that TEFRA sets out to remedy: duplicative proceedings, potentially leading to inconsistent results, on a question that applies equally to all of the partners. To be sure, the District Court could not make a formal ad-justment of any partner's outside basis in this partnership-level proceeding. See Petaluma, 591 F. 3d, at 655. But it nonetheless could determine whether the adjustments it did make, including the economic-substance deter-mination, had the potential to trigger a penalty; and in doing so, it was not required to shut its eyes to the legal impossibility of any partner's possessing an outside basis greater than zero in a partnership that, for tax purposes, did not exist. Each partner's outside basis still must be adjusted at the partner level before the penalty can be imposed, but that poses no obstacle to a partnership-level court's provisional consideration of whether the economic-substance determination is legally capable of triggering the penalty.2III. Applicability of Valuation-Misstatement PenaltyA Taxpayers who underpay their taxes due to a "valuation misstatement" may incur an accuracy-related penalty. A 20-percent penalty applies to "the portion of any underpayment which is attributable to . . . [a]ny substantial valuation misstatement under chapter 1." 26 U. S. C. §6662(a), (b)(3). Under the version of the penalty statute in effect when the transactions at issue here occurred,"there is a substantial valuation misstatement under chapter 1 if . . . the value of any property (or the adjusted basis of any property) claimed on any return of tax imposed by chapter 1 is 200 percent or more of the amount determined to be the correct amount of such valuation or adjusted basis (as the case may be)." §6662(e)(1)(A) (2000 ed.).If the reported value or adjusted basis exceeds the correct amount by at least 400 percent, the valuation misstatement is considered not merely substantial, but "gross," and the penalty increases to 40 percent. §6662(h).3 The penalty's plain language makes it applicable here. As we have explained, the COBRA transactions were designed to generate losses by enabling the partners to claim a high outside basis in the partnerships. But once the partnerships were deemed not to exist for tax purposes, no partner could legitimately claim an outside basis greater than zero. Accordingly, if a partner used an outside basis figure greater than zero to claim losses on his tax return, and if deducting those losses caused the partner to underpay his taxes, then the resulting underpayment would be "attributable to" the partner's having claimed an "adjusted basis" in the partnerships that exceeded "the correct amount of such . . . adjusted basis." §6662(e)(1)(A). An IRS regulation provides that when an asset's true value or adjusted basis is zero, "[t]he value or adjusted basis claimed . . . is considered to be 400 percent or more of the correct amount," so that the resulting valuation misstatement is automatically deemed gross and subject to the 40-percent penalty. Treas. Reg. §1.6662-5(g), 26 CFR §1.6662-5(g) (2013).4B Against this straightforward application of the statute, Woods' primary argument is that the economic-substance determination did not result in a "valuation misstatement." He asserts that the statutory terms "value" and "valuation" connote "a factual — rather than legal — concept," and that the penalty therefore applies only to factual misrepresentations about an asset's worth or cost, not to misrepresentations that rest on legal errors (like the use of a sham partnership). Brief for Respondent 35. We are not convinced. To begin, we doubt that "value" is limited to factual issues and excludes threshold legal determinations. Cf. Powers v. Commissioner, 312 U. S. 259, 260 (1941) ("[W]hat criterion should be employed for determining the 'value' of the gifts is a question of law"); Chapman Glen Ltd. v. Commissioner, 140 T. C. No. 15, 2013 WL2319282, *17 (2013) ("[T]hree approaches are used to determine the fair market value of property," and "which approach to apply in a case is a question of law"). But even if "value" were limited to factual matters, the statute refers to "value" or "adjusted basis," and there is no justification for extending that limitation to the latter term, which plainly incorporates legal inquiries. An asset's "basis" is simply its cost, 26 U. S. C. §1012(a) (2006 ed., Supp. V), but calculating its "adjusted basis" requires the application of a host of legal rules, see §§1011(a) (2006 ed.), 1016 (2006 ed. and Supp. V), including specialized rules for calculating the adjusted basis of a partner's interest in a partnership, see §705 (2006 ed.). The statute contains no indication that the misapplication of one of those legal rules cannot trigger the penalty. Were we to hold otherwise, we would read the word "adjusted" out of the statute. To overcome the plain meaning of "adjusted basis," Woods asks us to interpret the parentheses in the statutory phrase "the value of any property (or the adjusted basis of any property)" as a signal that "adjusted basis" is merely explanatory or illustrative and has no meaning inde-pendent of "value." The parentheses cannot bear that much weight, given the compelling textual evidence to the contrary. For one thing, the terms reappear later in the same sentence sans parentheses — in the phrase "such valuation or adjusted basis." Moreover, the operative terms are connected by the conjunction "or." While that can sometimes introduce an appositive — a word or phrase that is synonymous with what precedes it ("Vienna or Wien," "Batman or the Caped Crusader")--its ordinary use is almost always disjunctive, that is, the words it connects are to "be given separate meanings." Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979). And, of course, there is no way that "adjusted basis" could be regarded as synonymous with "value." Finally, the terms' second disjunctive appearance is followed by "as the case may be," which eliminates any lingering doubt that the preceding items are alternatives. See New Oxford American Dictionary 269 (3d ed. 2010). The parentheses thus do not justify "rob[bing] the term ['adjusted basis'] of its independent and ordinary significance." Reiter, supra, at 338-339. Our holding that the valuation-misstatement penalty encompasses legal as well as factual misstatements of adjusted basis does not make superfluous the new penalty that Congress enacted in 2010 for transactions lacking in economic substance, see §1409(b)(2), 124 Stat. 1068-1069 (codified at 26 U. S. C. §6662(b)(6) (2006 ed., Supp. V)). The new penalty covers all sham transactions, including those that do not cause the taxpayer to misrepresent value or basis; thus, it can apply in situations where the valuation-misstatement penalty cannot. And the fact that both penalties are potentially applicable to sham transactions resulting in valuation misstatements is not problematic. Congress recognized that penalties might overlap in a given case, and it addressed that possibility by providing that a taxpayer generally cannot receive more than one accuracy-related penalty for the same underpayment. See §6662(b) (2006 ed. and Supp. V).5C In the alternative, Woods argues that any underpayment of tax in this case would be "attributable," not to the misstatements of outside basis, but rather to the deter-mination that the partnerships were shams — which he describes as an "independent legal ground." Brief for Respondent 46. That is the rationale that the Fifth and Ninth Circuits have adopted for refusing to apply the valuation-misstatement penalty in cases like this, although both courts have voiced doubts about it. See Bemont, 679 F. 3d, at 347-348; id., at 351-355 (Prado, J., concurring); Keller v. Commissioner, 556 F. 3d 1056, 1060-1061 (CA9 2009). We reject the argument's premise: The economic-substance determination and the basis misstatement are not "independent" of one another. This is not a case where a valuation misstatement is a mere side effect of a sham transaction. Rather, the overstatement of outside basis was the linchpin of the COBRA tax shelter and the mechanism by which Woods and McCombs sought to reduce their taxable income. As Judge Prado observed, in this type of tax shelter, "the basis misstatement and the transaction's lack of economic substance are inextricably intertwined," so "attributing the tax underpayment only to the artificiality of the transaction and not to the basis overvaluation is making a false distinction." Bemont, supra, at 354 (concurring opinion). In short, the partners underpaid their taxes because they overstated their outside basis, and they overstated their outside basis because the partnerships were shams. We therefore have no difficulty concluding that any underpayment resulting from the COBRA tax shelter is attributable to the partners' misrepresentation of outside basis (a valuation misstatement). Woods contends, however, that a document known as the "Blue Book" compels a different result. See General Explanation of the Economic Recovery Tax Act of 1981 (Pub. L. 97-34), 97 Cong., 1st Sess., 333, and n. 2 (Jt. Comm. Print 1980). Blue Books are prepared by the staff of the Joint Committee on Taxation as commentaries on recently passed tax laws. They are "written after passage of the legislation and therefore d[o] not inform the decisions of the members of Congress who vot[e] in favor of the [law]." Flood v. United States, 33 F. 3d 1174, 1178 (CA9 1994). We have held that such "[p]ost-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation." Bruesewitz v. Wyeth LLC, 562 U. S. ___, ___ (2011) (slip op., at 17-18); accord, Federal Nat. Mortgage Assn. v. United States, 379 F. 3d 1303, 1309 (CA Fed. 2004) (dismissing Blue Book as "a post-enactment explanation"). While we have relied on similar documents in the past, see FPC v. Memphis Light, Gas & Water Div., 411 U. S. 458, 471-472 (1973), our more recent precedents disapprove of that practice. Of course the Blue Book, like a law review article, may be relevant to the extent it is persuasive. But the passage at issue here does not persuade. It concerns a situation quite different from the one we confront: two separate, non-overlapping underpayments, only one of which is attributable to a valuation misstatement.* * * The District Court had jurisdiction in this partnership-level proceeding to determine the applicability of the valuation-misstatement penalty, and the penalty is applicable to tax underpayments resulting from the partners' participation in the COBRA tax shelter. The judgment of the Court of Appeals is reversed.It is so ordered.FOOTNOTESFootnote 1 The District Court held that the partnerships did not have to be "honored as legitimate for tax purposes" because they did not possess " 'economic substance.' " App. to Pet. for Cert. 19a. Woods did not appeal the District Court's application of the economic-substance doctrine, so we express no view on it.Footnote 2 Some amici warn that our holding bodes an odd procedural result: The IRS will be able to assess the 40-percent penalty directly, but it will have to use deficiency proceedings to assess the tax underpayment upon which the penalty is imposed. See Brief for New Millennium Trading, LLC, et al. as Amici Curiae 12-13. That criticism assumes that the underpayment would not be exempt from deficiency proceedings because it would rest on outside basis, an "affected ite[m] ... other than [a] penalt[y]," 26 U. S. C. §6230(a)(2)(A)(i). We need not resolve that question today, but we do not think amici's answer necessarily follows. Even an underpayment attributable to an affected item is exempt so long as the affected item does not "require partner level determinations," ibid.; see Bush v. United States, 655 F. 3d 1323, 1330, 1333-1334 (CA Fed. 2011) (en banc); and it is not readily apparent why additional partner-level determinations would be required before adjusting outside basis in a sham partnership. Cf. Petaluma FX Partners, LLC v. Commissioner, 591 F. 3d 649, 655 (CADC 2010) ("If disregarding a partnership leads ineluctably to the conclusion that its partners have no outside basis, that should be just as obvious in partner-level proceedings as it is in partnership-level proceedings").Footnote 3 Congress has since lowered the thresholds for substantial and gross misstatements to 150 percent and 200 percent, respectively. See Pension Protection Act of 2006, §1219(a)(1)-(2), 120 Stat. 1083.Footnote 4 An amicus suggests that this regulation is in tension with the mathematical rule forbidding division by zero. See Brief for Prof. Amandeep S. Grewal as Amicus Curiae 20, n. 7; cf. Lee's Summit v. Surface Transp. Bd., 231 F. 3d 39, 41-42 (CADC 2000) (discussing "problems posed by applying [a] 100% increase standard to a baseline of zero"). Woods has not challenged the regulation before this Court, so we assume its validity for purposes of deciding this case.Footnote 5 We do not consider Woods' arguments based on legislative history. Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous. Mohamad v. Palestinian Authority, 566 U. S. ___, ___ (2012) (slip op., at 8). Nor do we evaluate the claim that application of the penalty to legal rather than factual misrepresentations is a recent innovation. An agency's failure to assert a power, even if prolonged, cannot alter the plain meaning of a statute. |
2 | In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. That Act provides that the Transportation Security Administration (TSA) "shall prescribe regulations prohibiting the disclosure of information . . . if the Under Secretary decides that disclosur[e] would . . . be detrimental to the security of transportation." 49 U. S. C. §114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of "sensitive security information," 67 Fed. Reg. 8351, which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations," 49 CFR §1520.7(j). In July 2003, the TSA briefed all federal air marshals — including Robert J. MacLean — about a potential plot to hijack passenger flights. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous and illegal. He therefore contacted a reporter and told him about the TSA's decision to cancel the missions. After discovering that MacLean was the source of the disclosure, the TSA fired him for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board. He argued that his disclosure was whistleblowing activity under 5 U. S. C. §2302(b)(8)(A), which protects employees who disclose information that reveals "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safety." The Board held that MacLean did not qualify for protection under that statute because his disclosure was "specifically prohibited by law," §2302(b)(8)(A)--namely, by 49 U. S. C. §114(r)(1). The Court of Appeals for the Federal Circuit vacated the Board's decision, holding that Section 114(r)(1) was not a prohibition.Held: MacLean's disclosure was not "specifically prohibited by law." Pp. 5-16. (a) The Government argues that MacLean's disclosure was "specifically prohibited by law" in two ways: first, by the TSA's regulations on sensitive security information, and second, by Section 114(r)(1) itself, which authorized the TSA to promulgate those regulations. Pp. 5-14. (i) MacLean's disclosure was not prohibited by the TSA's regulations for purposes of Section 2302(b)(8)(A) because regulations do not qualify as "law" under that statute. Throughout Section 2302, Congress repeatedly used the phrase "law, rule, or regulation." But Congress did not use that phrase in the statutory language at issue here; it used the word "law" standing alone. Congress's choice to say "specifically prohibited by law," instead of "specifically prohibited by law, rule, or regulation" suggests that Congress meant to exclude rules and regulations. In addition, Section 2302(b)(8)(A) creates a second exception for disclosures "required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs." That the second exception is limited to actions by the President himself suggests that the first exception does not include action taken by executive agencies. Finally, interpreting the word "law" to include rules and regulations could defeat the purpose of the whistleblower statute. That interpretation would allow an agency to insulate itself from Section 2302(b)(8)(A) simply by promulgating a regulation that "specifically prohibited" all whistleblowing. The Government proposes two alternative interpretations, but neither is persuasive. First, the Government argues that the word "law" includes all regulations that have the "force and effect of law." The Government bases this argument on the decision in Chrysler Corp. v. Brown, 441 U. S. 281, where this Court held that legislative regulations generally fall within the meaning of the word "law" unless there is a "clear showing of contrary legislative intent." Id., at 295-296. But Congress's use of the word "law," in close connection with the phrase "law, rule, or regulation," provides the necessary "clear showing" that "law" does not include regulations in this case. Second, the Government argues that the word "law" includes at least those regulations that were "promulgated pursuant to an express congressional directive." The Government, however, was unable to find a single example of the word "law" being used in that way. Pp. 6-11. (ii) Likewise, MacLean's disclosure was not prohibited by Section 114(r)(1). That statute does not prohibit anything; instead, it authorizes the TSA to "prescribe regulations." Thus, by its terms, Section 114(r)(1) did not prohibit the disclosure here. The Government responds that Section 114(r)(1) did prohibit MacLean's disclosure by imposing a "legislative mandate" on the TSA to promulgate regulations to that effect. But the statute affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure. Thus, it is the TSA's regulations — not the statute — that prohibited MacLean's disclosure, and those regulations do not qualify as "law" under Section 2302(b)(8)(A). Pp. 11-14. (b) The Government argues that providing whistleblower protection to individuals like MacLean would "gravely endanger public safety" by making the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA's 60,000 employees. Those concerns are legitimate, but they must be addressed by Congress or the President, rather than by this Court. Pp. 14-15.714 F. 3d. 1301, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Kennedy, J., joined.Opinion of the Court 574 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-894DEPARTMENT OF HOMELAND SECURITY, PETITIONER v. ROBERT J. MacLEANon writ of certiorari to the united states court of appeals for the federal circuit[January 21, 2015] Chief Justice Roberts delivered the opinion of the Court. Federal law generally provides whistleblower protections to an employee who discloses information revealing "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safety." 5 U. S. C. §2302(b)(8)(A). An exception exists, however, for disclosures that are "specifically prohibited by law." Ibid. Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had de-cided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was "specifically prohibited by law."IA In 2002, Congress enacted the Homeland Security Act, 116 Stat. 2135. As relevant here, that Act provides that the TSA "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation." 49 U. S. C. §114(r)(1)(C). Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called "sensitive security information." See 67 Fed. Reg. 8351 (2002). The regulations described 18 categories of sensitive security information, including "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations." 49 CFR §1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees. Compare Exec. Order 13526, §4.1, 3 CFR 298, 314-315 (2009 Comp.), with 49 CFR §1520.11(c) (2013).B Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings. See 49 U. S. C. §44917(a). On July 26, 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. The advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they "considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets." App. 16. The advisory identified a number of potential targets, including the United Kingdom, Italy, Australia, and the east coast of the United States. Finally, the advisory warned that at least one of the attacks "could be executed by the end of the summer 2003." Ibid. The TSA soon summoned all air marshals (including MacLean) for face-to-face briefings about the hijacking plot. During MacLean's briefing, a TSA official told him that the hijackers were planning to "smuggle weapons in camera equipment or children's toys through foreign security," and then "fly into the United States . . . into an airport that didn't require them to be screened." Id., at 92. The hijackers would then board U. S. flights, "overpower the crew or the Air Marshals and . . . fly the planes into East Coast targets." Id., at 93. A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous. He also believed that the cancellations were illegal, given that federal law required the TSA to put an air marshal on every flight that "present[s] high security risks," 49 U. S. C. §44917(a)(2), and provided that "nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority," §44917(b). See App. 95, 99, 101. MacLean therefore asked a supervisor why the TSA had canceled the missions. The supervisor responded that the TSA wanted "to save money on hotel costs because there was no more money in the budget." Id., at 95. MacLean also called the DHS Inspector General's Office to report the cancellations. But a special agent in that office told him there was "nothing that could be done." Id., at 97. Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. In turn, the reporter published a story about the TSA's decision, titled "Air Marshals pulled from key flights." Id., at 36. The story reported that air marshals would "no longer be covering cross-country or international flights" because the agency did not want them "to incur the expense of staying overnight in hotels." Ibid. The story also reported that the cancellations were "particularly disturbing to some" because they "coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security." Id., at 37. After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights. Id., at 50. At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA's dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization. MacLean challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under 5 U. S. C. §2302(b)(8)(A). The Board held that MacLean did not qualify for protection under that statute, however, because his disclosure was "specifically prohibited by law." 116 MSPR 562, 569-572 (2011). The Court of Appeals for the Federal Circuit vacated the Board's decision. 714 F. 3d 1301 (2013). The parties had agreed that, in order for MacLean's disclosure to be "specifically prohibited by law," it must have been "prohibited by a statute rather than by a regulation." Id., at 1308 (emphasis added). Thus, the issue before the court was whether the statute authorizing the TSA's regulations — now codified at 49 U. S. C. §114(r)(1)--"specifically prohibited" MacLean's disclosure. 714 F. 3d, at 1308.* The court first held that Section 114(r)(1) was not a prohibition. The statute did "not expressly prohibit employee disclosures," the court explained, but instead empowered the TSA to "prescribe regulations prohibiting disclosure[s]" if the TSA decided that disclosing the information would harm public safety. Id., at 1309. The court therefore concluded that MacLean's disclosure was prohibited by a regulation, which the parties had agreed could not be a "law" under Section 2302(b)(8)(A). Ibid. The court then held that, even if Section 114(r)(1) were a prohibition, it was not "sufficiently specific." Ibid. The court explained that a law is sufficiently specific only if it "requires that matters be withheld from the public as to leave no discretion on the issue, or . . . establishes particular criteria for withholding or refers to particular types of matters to be withheld." Ibid. (quoting S. Rep. No. 95-969 (1978)). And Section 114(r)(1) did not meet that test because it "provide[d] only general criteria for withholding information and [gave] some discretion to the [TSA] to fashion regulations for prohibiting disclosure." 714 F. 3d, at 1309. The court accordingly vacated the Board's decision and remanded for a determination of whether MacLean's disclosure met the other requirements under Section 2302(b)(8)(A). Id., at 1310-1311. We granted certiorari. 572 U. S. ___ (2014).II Section 2302(b)(8) provides, in relevant part, that a federal agency may not take"a personnel action with respect to any employee or applicant for employment because of"(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences"(i) any violation of any law, rule, or regulation, or"(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,"if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs." The Government argues that this whistleblower statute does not protect MacLean because his disclosure regarding the canceled missions was "specifically prohibited by law" in two ways. First, the Government argues that the disclosure was specifically prohibited by the TSA's regulations on sensitive security information: 49 CFR §§1520.5(a)-(b), 1520.7(j) (2003). Second, the Government argues that the disclosure was specifically prohibited by 49 U. S. C. §114(r)(1), which authorized the TSA to pro-mulgate those regulations. We address each argument in turn.A1 In 2003, the TSA's regulations prohibited the disclosure of "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations." 49 CFR §1520.7(j). MacLean does not dispute before this Court that the TSA's regulations prohibited his disclosure regarding the canceled missions. Thus, the question here is whether a disclosure that is specifically prohibited by regulation is also "specifically prohibited by law" under Section 2302(b)(8)(A). (Emphasis added.) The answer is no. Throughout Section 2302, Congress repeatedly used the phrase "law, rule, or regulation." For example, Section 2302(b)(1)(E) prohibits a federal agency from discriminating against an employee "on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation." For another example, Section 2302(b)(6) prohibits an agency from "grant[ing] any preference or advantage not authorized by law, rule, or regulation." And for a third example, Section 2302(b) (9)(A) prohibits an agency from retaliating against an employee for "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation." In contrast, Congress did not use the phrase "law, rule, or regulation" in the statutory language at issue here; it used the word "law" standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States, 464 U. S. 16, 23 (1983). Thus, Congress's choice to say "specifically prohibited by law" rather than "specifically prohibited by law, rule, or regulation" suggests that Congress meant to exclude rules and regulations. The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force here for two reasons. First, Congress used "law" and "law, rule, or regulation" in close proximity — indeed, in the same sentence. §2302(b)(8)(A) (protecting the disclosure of "any violation of any law, rule, or regulation . . . if such disclosure is not specifically prohibited by law"). Second, Congress used the broader phrase "law, rule, or regulation" repeatedly — nine times in Section 2302 alone. See §§2302(a)(2)(D)(i), (b)(1)(E), (b)(6), (b)(8)(A)(i), (b)(8)(B)(i), (b)(9)(A), (b)(12), (b)(13), (d)(5). Those two aspects of the whistleblower statute make Congress's choice to use the narrower word "law" seem quite deliberate. We drew the same inference in Department of Treasury, IRS v. FLRA, 494 U. S. 922 (1990). There, the Government argued that the word "laws" in one section of the Civil Service Reform Act of 1978 meant the same thing as the phrase "law, rule, or regulation" in another section of the Act. Id., at 931. We rejected that argument as "sim-ply contrary to any reasonable interpretation of the text." Id., at 932. Indeed, we held that a statute that referred to "laws" in one section and "law, rule, or regulation" in another "cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places." Ibid. That inference is even more compelling here, because the statute refers to "law" and "law, rule, or regulation" in the same sentence, rather than several sections apart. Another part of the statutory text points the same way. After creating an exception for disclosures "specifically prohibited by law," Section 2302(b)(8)(A) goes on to create a second exception for information "specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs." This exception is limited to action taken directly by the President. That suggests that the word "law" in the only other exception is limited to actions by Congress — after all, it would be unusual for the first exception to include action taken by executive agencies, when the second exception requires action by the President himself. In addition, a broad interpretation of the word "law" could defeat the purpose of the whistleblower statute. If "law" included agency rules and regulations, then an agency could insulate itself from the scope of Section 2302(b)(8)(A) merely by promulgating a regulation that "specifically prohibited" whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word "law."2 The Government admits that some regulations fall outside the word "law" as used in Section 2302(b)(8)(A). But, the Government says, that does not mean that all regulations are excluded. The Government suggests two interpretations that would distinguish "law" from "law, rule, or regulation," but would still allow the word "law" to subsume the TSA's regulations on sensitive security information. First, the Government argues that the word "law" includes all regulations that have the "force and effect of law" (i.e., legislative regulations), while excluding those that do not (e.g., interpretive rules). Brief for Petitioner 19-22. The Government bases this argument on our decision in Chrysler Corp. v. Brown, 441 U. S. 281 (1979). There, we held that legislative regulations generally fall within the meaning of the word "law," and that it would take a "clear showing of contrary legislative intent" before we concluded otherwise. Id., at 295-296. Thus, because the TSA's regulations have the force and effect of law, the Government says that they should qualify as "law" under the statute. The Government's description of Chrysler is accurate enough. But Congress's use of the word "law," in close connection with the phrase "law, rule, or regulation," provides the necessary "clear showing" that "law" does not include regulations. Indeed, using "law" and "law, rule, or regulation" in the same sentence would be a very obscure way of drawing the Government's nuanced distinction between different types of regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed Section 2302(b)(8)(A), another federal statute defined the words "regulatory order" to include a "rule or regulation, if it has the force and effect of law." 7 U. S. C. §450c(a) (1976 ed.). Likewise, another federal statute defined the words "State law" to include "all laws, decisions, rules, regulations, or other State action having the effect of law." 29 U. S. C. §1144(c)(1) (1976 ed.). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302(b)(8)(A). Second, the Government argues that the word "law" includes at least those regulations that were "promulgated pursuant to an express congressional directive." Brief for Petitioner 21. Outside of this case, however, the Government was unable to find a single example of the word "law" being used in that way. Not a single dictionary definition, not a single statute, not a single case. The Government's interpretation happens to fit this case precisely, but it needs more than that to recommend it. Although the Government argues here that the word "law" includes rules and regulations, it definitively re-jected that argument in the Court of Appeals. For example, the Government's brief accepted that the word "law" meant "legislative enactment," and said that the "only dispute" was whether 49 U. S. C. §114(r)(1) "serve[d] as that legislative enactment." Brief for Respondent in No. 11-3231 (CA Fed.), pp. 46-47. Then, at oral argument, a judge asked the Government's attorney the following question: "I thought I understood your brief to concede that [the word "law"] can't be a rule or regulation, it means statute. Am I wrong?" The Government's attorney responded: "You're not wrong your honor. I'll be as clear as I can. 'Specifically prohibited by law' here means statute." Oral Arg. Audio in No. 11-3231, at 22:42-23:03; see also id., at 29:57-30:03 ("Now, as we've been discussing here, we're not saying here that [the word "law"] needs to encompass regulations. We're saying statute."). Those concessions reinforce our conclusion that the Government's proposed interpretations are unpersuasive. In sum, when Congress used the phrase "specifically prohibited by law" instead of "specifically prohibited by law, rule, or regulation," it meant to exclude rules and regulations. We therefore hold that the TSA's regulations do not qualify as "law" for purposes of Section 2302(b)(8)(A).B We next consider whether MacLean's disclosure regarding the canceled missions was "specifically prohibited" by 49 U. S. C. §114(r)(1) itself. As relevant here, that statute provides that the TSA "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation." §114(r)(1)(C). This statute does not prohibit anything. On the con-trary, it authorizes something — it authorizes the Under Secretary to "prescribe regulations." Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here. The Government responds that Section 114(r)(1) did prohibit MacLean's disclosure by imposing a "legislative mandate" on the TSA to promulgate regulations to that effect. See Brief for Petitioner 28, 33; see also post, at 2-3 (Sotomayor, J., dissenting). But the Government pushes the statute too far. Section 114(r)(1) says that the TSA shall prohibit disclosures only "if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation." §114(r)(1)(C) (emphasis added). That language affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure. The dissent tries to downplay the scope of that discretion, viewing it as the almost ministerial task of "identifying whether a particular piece of information falls within the scope of Congress' command." Post, at 3. But determining which documents meet the statutory standard of "detrimental to the security of transportation" requires the exercise of considerable judgment. For example, the Government says that Section 114(r)(1) requires the Under Secretary to prohibit disclosures like MacLean's. The Government also says, however, that the statute does not require the Under Secretary to prohibit an employee from disclosing that "federal air marshals will be absent from important flights, but declining to specify which flights." Reply Brief 23. That fine-grained distinction comes not from Section 114(r)(1) itself, but from the Under Secretary's exercise of discretion. It is the TSA's regulations — not the statute — that prohibited MacLean's disclosure. And as the dissent agrees, a regulation does not count as "law" under the whistleblower statute. See post, at 1. The Government insists, however, that this grant of discretion does not make Section 114(r)(1) any less of a prohibition. In support, the Government relies on Administrator, FAA v. Robertson, 422 U. S. 255 (1975). That case involved the Freedom of Information Act (FOIA), which requires federal agencies to disclose information upon request unless, among other things, the information is "specifically exempted from disclosure by statute." 5 U. S. C. §552(b)(3). In Robertson, we held that the Federal Aviation Act of 1958 was one such statute, because it gave the Federal Aviation Administration (FAA) "a broad degree of discretion" in deciding whether to disclose or withhold information. 422 U. S., at 266. The Government tries to analogize that case to this one. In Robertson, the Government says, the FAA's discretion whether to disclose information did not preclude a finding that the information was "specifically exempted" from disclosure by statute. So too here, the Government says, the TSA's discretion whether to prohibit disclosure of information does not preclude a finding that the information is "specifically prohibited" from disclosure by Section 114(r)(1). See Brief for Petitioner 30. This analogy fails. FOIA and Section 2302(b)(8)(A) differ in an important way: The provision of FOIA at issue involves information that is "exempted" from disclosure, while Section 2302(b)(8)(A) involves information that is "prohibited" from disclosure. A statute that exempts information from mandatory disclosure may nonetheless give the agency discretion to release that exempt information to the public. In such a case, the agency's exercise of discretion has no effect on whether the information is "exempted from disclosure by statute"--it remains exempt whatever the agency chooses to do. The situation is different when it comes to a statute giving an agency discretion to prohibit the disclosure of information. The information is not prohibited from disclosure by statute regardless of what the agency does. It is the agency's exercise of discretion that determines whether there is a prohibition at all. Thus, when Section 114(r)(1) gave the TSA the discretion to prohibit the disclosure of information, the statute did not create a prohibition — it gave the TSA the power to create one. And because Section 114(r)(1) did not create a prohibition, MacLean's disclosure was not "prohibited by law" under Section 2302(b)(8)(A), but only by a regulation issued in the TSA's discretion. In any event, Robertson was a case about FOIA, not Section 2302, and our analysis there depended on two FOIA-specific factors that are not present here. First, we examined the legislative history of FOIA and determined that Congress did not intend that statute to affect laws like the Federal Aviation Act. 422 U. S., at 263-265. In particular, we noted that the Civil Aeronautics Board had expressed its view during congressional hearings that the Federal Aviation Act qualified as an exempting statute under FOIA, and that "no question was raised or challenge made" to the agency's view. Id., at 264-265. But that legislative history can have no effect on our analysis of Section 2302(b)(8)(A). Second, we said that the Federal Aviation Act could fail to qualify as an exempting statute only if we read FOIA "as repealing by implication all existing statutes which restrict public access to specific Government records." Id., at 265 (internal quotation marks omitted). Then, relying on the presumption that "repeals by implication are disfavored," we rejected that interpretation of FOIA. But the presumption against implied repeals has no relevance here. Saying that Section 114(r)(1) is not a prohibition under the whistleblower statute is not the same as saying that the whistleblower statute implicitly repealed Section 114(r)(1). On the contrary, Section 114(r)(1) remains in force by allowing the TSA to deny FOIA requests and prohibit employee disclosures that do not qualify for whistleblower protection under Section 2302(b)(8)(A). Ultimately, FOIA and Section 2302(b)(8)(A) are different statutes — they have different language, different histories, and were enacted in different contexts. Our interpretation of one, therefore, has no impact whatsoever on our interpretation of the other.III Finally, the Government warns that providing whistleblower protection to individuals like MacLean would "gravely endanger public safety." Brief for Petitioner 38. That protection, the Government argues, would make the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA's 60,000 employees. Id., at 37. And those employees will "most likely lack access to all of the information that led the TSA to make particular security decisions." Id., at 38. Thus, the Government says, we should conclude that Congress did not intend for Section 2302(b)(8)(A) to cover disclosures like MacLean's. Those concerns are legitimate. But they are concerns that must be addressed by Congress or the President, rather than by this Court. Congress could, for example, amend Section 114(r)(1) so that the TSA's prohibitions on disclosure override the whistleblower protections in Section 2302(b)(8)(A)--just as those prohibitions currently override FOIA. See §114(r)(1) (authorizing the TSA to prohibit disclosures "[n]otwithstanding section 552 of title 5"); see also 10 U. S. C. §2640(h) ("the Secretary of Defense may (notwithstanding any other provision of law) withhold from public disclosure safety-related information that is provided to the Secretary voluntarily by an air carrier for the purposes of this section"). Congress could also exempt the TSA from the requirements of Section 2302(b)(8)(A) entirely, as Congress has already done for the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. See 5 U. S. C. §2302(a)(2)(C)(ii)(I). Likewise, the President could prohibit the disclosure of sensitive security information by Executive order. Indeed, the Government suggested at oral argument that the President could "entirely duplicate" the regulations that the TSA has issued under Section 114(r)(1). Tr. of Oral Arg. 16-20. Such an action would undoubtedly create an exception to the whistleblower protections found in Section 2302(b)(8)(A). Although Congress and the President each has the power to address the Government's concerns, neither has done so. It is not our role to do so for them. The judgment of the United States Court of Appeals for the Federal Circuit isAffirmed.Sotomayor, J., dissenting 574 U. S. ____ (2015)No. 13-894DEPARTMENT OF HOMELAND SECURITY, PETITIONER v. ROBERT J. MacLEANon writ of certiorari to the united states court of appeals for the federal circuit[January 21, 2015] Justice Sotomayor, with whom Justice Kennedy joins, dissenting. I agree with much of the Court's opinion. I have no qualms with the Court's conclusion that the phrase "specifically prohibited by law," as used in the Whistleblower Protection Act of 1989 (WPA), 5 U. S. C. §2302(b)(8)(A), does not encompass disclosures prohibited only by regulation. See ante, at 7. Nor do I see any problem in the distinction the Court draws between statutes that prohibit information from being disclosed, the violation of which may preclude application of the WPA, and statutes that simply exempt information from otherwise-applicable disclosure requirements, which do not trigger the WPA's "prohibited by law" exception. See ante, at 12-13. I part ways with the Court, however, when it concludes that 49 U. S. C. §114(r)(1) does not itself prohibit the type of disclosure at issue here — the release of information regarding the absence of federal air marshals on overnight flights. Ante, at 11. That statute provides, in relevant part, that the Transportation Security Administration (TSA) "shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security . . . if the Under Secretary decides that disclosing the information would . . . be detrimental to the security of transportation." §114(r)(1) (emphasis added). The Court reasons, first, that Section 114(r)(1) does not "prohibit anything," but instead simply "authorizes" the TSA to prescribe regulations. Ante, at 11. But this contention overlooks the statute's use of the word "shall," which, as we have observed, "generally means 'must.' " Gutierrez de Martinez v. Lamagno, 515 U. S. 417, 432, n. 9 (1995); see also, e.g., Federal. Express Corp. v. Holowecki, 552 U. S. 389, 400 (2008) ("Congress' use of the term 'shall' indicates an intent to 'impose discretionless obligations' ") (some internal quotation marks omitted)); A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 114 (2012) ("[W]hen the word shall can reasonably read as mandatory, it ought to be so read"). Section 114(r)(1) does not merely authorize the TSA to promulgate regulations; it directs it to do so, and describes what those regulations must accomplish. The Court focuses, second, on the fact that Section 114(r) authorizes the TSA to " 'decid[e]' " whether the disclosure of a particular item of information would in fact be " 'detrimental to the security of transportation.' " Ante, at 11-12 (emphasis deleted). I certainly agree that this language vests some discretion in the agency.1 But the agency is required to prevent the disclosure of any information it determines is within Congress' prohibition; its discretion pertains only to identifying whether a particular piece of information falls within the scope of Congress' command. In concluding that such residual agency discretion deprives Section 114(r) of prohibitory effect, the Court overlooks the degree of agency involvement that is necessary in the administration of many antidisclosure statutes. Congress cannot be expected to identify with particularity each individual document or datum the release of which it wants to preclude. Often, it will have to leave to an agency or other enforcing authority the tasks of defining — perhaps through regulations — exactly what type of information falls within the scope of the congressional prohibition, and of determining whether a particular item of information fits the bill. The enforcing authority may, as the Court puts it, sometimes be required to make some "fine-grained distinction[s]" in fulfilling this charge, ante, at 12, but that does not change the fact that Congress itself is the source of the prohibition on disclosure.2 Indeed, Congress appears to have anticipated the need for agency involvement in the interpretation and enforcement of antidisclosure statutes at the time it enacted the WPA. The Senate Report to the WPA identified only two statutes the violation of which would preclude whistleblower protection, the first being Section 102(d)(3) of the National Security Act of 1947, 61 Stat. 498, which provided that "the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure." See S. Rep. No. 95-969, pp. 21-22 (1978). This example clearly suggests Congress contemplated that a statute directing an agency to protect against disclosures and delegating substantial authority to the agency should nevertheless be deemed to impose the relevant prohibition. Section 114(r)(1)'s delegation to the TSA to "decide" whether the release of particular information would be "detrimental to the security of transportation" likewise simply reflects Congress' recognition of the inevitable fact that the agency will be tasked, in the first instance, with enforcing its statutory mandate. In sum, with Section 114(r)(1), Congress has required agency action that would preclude the release of information "detrimental to the security of transportation." In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is "prohibited by law" within the meaning of the WPA. Having said all that, I appreciate the narrowness of the Court's holding. The Court's conclusion that Section 114(r) does not itself prohibit any disclosures depends entirely on the statutory language directing the agency to "prescribe regulations," and providing that the agency will "decid[e]" what information falls within the statue's purview. See ante, at 11. From all that appears in the majority opinion, then, this case would likely have turned out differently if Section 114(r) instead provided: "The disclosure of information detrimental to the security of transportation is prohibited, and the TSA shall promulgate regulations to that effect," or "The Under Secretary shall prescribe regulations prohibiting the disclosure of information detrimental to the security of transportation; and such disclosures are prohibited." I myself decline to surrender so fully to sheer formalism, especially where transportation security is at issue and there is little dispute that the disclosure of air marshals' locations is potentially dangerous and was proscribed by the relevant implementing regulation. In so surrendering, however, the Court would appear to have enabled future courts and Congresses to avoid easily the consequences of its ruling, and thus to have limited much of the potential for adverse practical effects beyond this case. But in the interim, at least, the Court has left important decisions regarding the disclosure of critical information completely to the whims of individual employees. I respectfully dissent.FOOTNOTESFootnote 1* This statute has a complicated history. It was codified at 49 U. S. C. §40119(b)(1) when the TSA initially promulgated its regulations on sensitive security information. It was codified at §114(s)(1) when MacLean disclosed the text message to MSNBC. And it is now codified at §114(r)(1). The Federal Circuit referred to §40119(b)(1) in its opinion. Because the statute has remained identical in all relevant respects, however, we and the parties refer to the current version.FOOTNOTESFootnote 1 The Court does not address respondent's alternative argument, accepted by the Court of Appeals below, that Section 114(r)(1) describes the information encompassed in its prohibitory scope with insufficient particularity to qualify the disclosure here as "specifically prohibited by law" within the meaning of the WPA. Some of the legislative history of the WPA linked its specificity requirement to the criteria established in Exemption 3 of the Freedom of Information Act, 5 U. S. C. §552(b)(3), and the Court of Appeals applied this standard. See 714 F. 3d 1301, 1309 (CA Fed. 2013); see also S. Rep. No. 95-969, pp. 21-22 (1978). MacLean has offered no argument that a WPA anti-disclosure statute must define the relevant category of information with any greater degree of particularity. Assuming the Exemption 3 standard is applicable, I note that Section 114(r) is at least as "specific" as the statutory provisions we have previously held to satisfy Exemption 3's requirements. See, e.g., Department of Justice v. Julian, 486 U. S. 1, 9 (1988) (holding that provisions of Federal Rule of Criminal Procedure 32(c)(3)(A) and former 18 U. S. C. §4208(c)(1982 ed.) prohibiting disclosure of portions of presentence reports "relat[ed] to confidential sources, diagnostic opinions, and other information that may cause harm to the defendant or to third parties" could justify withholding under Exemption 3 (emphasis added)).Footnote 2 For the same reasons, the agency's decision that a disclosure contravened a statute may not necessarily be determinative in any given WPA case: Although an agency may no doubt receive deference in the interpretation and implementation of a prohibitory statute, ultimately WPA protection will not apply if the agency improperly concluded that a given disclosure was prohibited by that statute. Cf. CIA v. Sims, 471 U. S. 159, 168-181 (1985) (according deference to Central Intelligence Agency's expertise, but engaging in an extended analysis of whether the particular information the agency refused to disclose fell within the scope of the statutory prohibition). |
0 | Mr. O. John Rogge, Washington, D.C., for petitioner. Mr. Alexander M. Campbell, Asst. Attorney General, for respondent. [ Christoffel v. United States ], 85] Mr. Justice MURPHY delivered the opinion of the Court. In March of 1947, the committee on Education and Labor was, as it is now, a standing committee of the House of Representatives. 1 During the first session of the 80th Congress it held frequent hearings on proposed amendments to the National Labor Relations Act. On March 1, 1947, petitioner appeared as a witness before the committee, under oath, and in the course of the proceedings was asked a series of questions directed to his political affiliations and associations. In his answers he unequivocally denied that he was a Communist or that he endorsed, supported or participated in Communist programs. As a result of these answers he was indicted for perjury under Title 22, 2501 of the District of Columbia Code,2 and after a trial by jury was convicted. The Court of Appeals affirmed the conviction, 171 F.2d 1004, and we granted certiorari to review its validity. . No question is raised as to the relevancy or propriety of the questions asked. Petitioner's main contention is that the committee was not a 'competent tribunal' within the meaning of the statute, in that a quorum of , 86] the committee was not present at the time of the incident on which the indictment was based. As to this, the record reveals the following: the Committee on Education and Labor consists of twenty-five members, of whom thirteen constitute a quorum. At the commencement of the afternoon session on Saturday, March 1, 1947, shortly after two o'clock, a roll call showed that fourteen members were present. Petitioner's testimony started some time after four o'clock. The responses said to constitute offenses were given just prior to five p.m. Evidence was adduced was adduced at the trial from which a jury might have concluded that at the time of the allegedly perjurious answers less than a quorum-as few as six-of the committee were in attendance. Counsel for the petitioner contended vigorously at the trial, on appeal and in this Court that unless a quorum were found to be actually present when the crucial questions were asked, the statutory requirement of a competent tribunal was not met and that absent such a finding a verdict of acquittal should follow. The trial court agreed that the presence of a quorum was an indispensable part of the offense charged, and instructed the jury that to find the defendant guilty they had to find beyond a reasonable doubt 'That the defendant Christoffel appeared before a quorum of at least thirteen members of the said Committee,' and 'that at least that number must have been actually and physically present. * * * If such a Committee so met, that is, if thirteen members did meet at the beginning of the afternoon session of March 1, 1947, and thereafter during the progress of the hearing some of them left temporarily or otherwise and no question was raised as to the lack of a quorum, then the fact that the majority did not remain there would not affect, for the purposes of this case, the existence of that Committee as a competent tribunal provided that before the oath was administered , 87] and before the testimony of the defendant was given there were present as many as 13 members of that Committee at the beginning of the afternoon session. * * *' This charge is objected to insofar as it allows the jury to find a quorum present simply by finding that thirteen or more members were in attendance when the committee was convened, without reference to subsequent facts. The Constitution of the United States provides that 'Each House may determine the Rules of its Proceedings,' Art. I, 5, and we find that the subject of competency, both of the House as a whole and of its committees, has been a matter of careful consideration. Rule XI(2)(f) of the House of Representatives reads in part, 'The rules of the House are hereby made the rules of its standing committees so far as applicable. * * *' Rule XV of the House provides for a call of the House if a quorum is not present, and it has been held under this rule that such a call, or a motion to adjourn, is the only business that may be transacted in the absence of a quorum. IV Hind's Precedents 2950; IV id. 2988. See IV id. 2934, 2939; VI Cannon's Precedents 653; VI id. 680. It appears to us plain that even the most highly privileged business must be suspended in the absence of a quorum in the House itself. A similar situation obtains in the committees. 3 The Legislative Reorganization Act of 1946, 60 Stat. 812, provides, referring to the standing committees, in 133(d), 'No measure or recommendation shall be reported from any such committee unless a majority of the commit- , 88] tee were actually present.' The rule embodied in this subsection was effective as long ago as 1918 to keep off the floor of the House a bill from a committee attended by less than a quorum, even though no objection was raised i the committee meeting itself. It appeared that the situation in the committee was much like the one with which we are concerned, with members coming and going during the meeting. No point of no quorum was raised at the committee meeting. When the Chairman proposed in the House to bring up the bill considered in the meeting, the Speaker ruled, on objection being made from the floor, that in spite of the point's not having been raised in committee, the bill could not be reported. The absence of a quorum of the committee, though at the time unobjected to, had made effective action impossible. VIII Cannon's Precedents 2212. Witnesses in committee hearings cannot be required to be familiar with the complications of parliamentary practice. Even if they are, the power to raise a point of no quorum appears to be limited to members of the committee. We have no doubt that if a member of the committee had raised a point of no quorum and a count had revealed the presence of less than a majority, proceedings would have been suspended until the deficiency should be supplied. In a criminal case affecting the rights of one not a member, the occasion of trial is an appropriate one for petitioner to raise the question. Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us. The question is neither what rules Congress may establish for its own governance, nor whether presumptions of continuity may protect the validity of its legislative conduct. The question is rather what rules , 89] the House has established and whether they have been followed. It of course has the power to define what tribunal is competent to exact testimony and the conditions that establish its competency to do so. The heart of this case is that by the charge that was given it the jury was allowed to assume that the conditions of competency were satisfied even though the basis in fact was not established and in face of a possible finding that the facts contradicted the assumption. We are measuring a conviction of crime by the statute which defined it. As a consequence of this conviction, petitioner was sentenced to imprisonment for a term of from two to six years. An essential part of a procedure which can be said fairly to inflict such a punishment is that all the element of the crime charged shall be proved beyond a reasonable doubt. An element of the crime charged in the instant indictment is the presence of a competent tribunal, and the trial court properly so instructed the jury. The House insists that to be such a tribunal a committee must consist of a quorum, and we agree with the trial court's charge that to convict, the jury had to be satisfied beyond a reasonable doubt that there were 'actually physically present' a majority of the committee. 4 , 90] Then to charge, however, that such requirement is satisfied by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. This not only seems to us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction. The Court of Appeals erred in affirming so much of the instructions to the jury as allowed them to find a quorum present without reference to the facts at the time of the alleged perjurious testimony, and its judgment is reversed. Reversed. Mr. Justice JACKSON, dissenting. THE CHIEF JUSTICE, Mr. Justice REED, Mr. Justice BURTON, and I think the Court is denying to the records of the Congress and its committees the credit and effect to which they are entitled, quite contrary to all recognized parliamentary rules, our previous decisions, and the Constitution itself. No one questions that the competency of a Committee of either House of Congress depends upon the action of the House in constituting the Committee, and in determining the rules governing its procedure. Nor does any one deny that each House has the power to provide expressly that a majority of the entire membership of any of its Committees shall constitute a quorum for certain purposes and that, for other purposes, a different number shall be sufficient. For example, either House may provide expressly that, for the purpose of convening a session of a Com- , 91] mittee or of approving a report, a majority of the Committee's entire membership shall be necessary and that, for the purpose of taking sworn testimony, one or more Committee members shall be sufficient to constitute a quorum. Similarly, each House may spell out a formal rule that a Committee shall constitute a competent tribunal to take sworn testimony if a majority of its members shall be present at the beginning of the session at which the testimony is taken and that such competency shall continue, although the attendance of Committee members may drop, during the Committee's session, to some smaller number. The reasonableness of such a rule is apparent because the value of the testimony taken by such a Committee is measured not so much by the number of people who hear it spoken at the session as it is by the number and identity of those who read it later. But what Congress may do by express rule it may do also by its custom and practice. There is no requirement, constitutional or otherwise, that its body of parliamentary law must be recorded in order to be authoritative. In the absence of objection raised at the time, and in the absence of any showing of a rule, practice or custom to the contrary, this Court has the duty to presume that the conduct of a Congressional Committee, in its usual course of business, conforms to both the written and unwritten rules of the House which created it. 'Each House may determine the Rules of its Proceedings, * * *.' Art. I, 2, cl. 2. This Court accordingly can neither determine the rules for either House of Congress nor require those rules to be expressed with any degree of explicitness other than that chosen by the respective Houses. The record shows a quorum of this committee present when the session began and neither Christoffel nor anyone else had raised the point of no quorum up to the time he gave false testimony. On trial for perjury he introduced oral testimony tending to show that, at the moment , 92] he so testified, less than a quorum were actually present. The trial court charged that, in the absence of ch llenge or proof to the contrary, the quorum established at the beginning of the session is presumed to continue and the jury could find Christoffel guilty of perjury if he gave false testimony before such a body. He was found guilty. The Court now holds the charge was erroneous and that if the Government cannot show positively that there was a quorum present when he falsified, the committee was not a 'competent tribunal' within the Perjury Statute of the District and his conviction thereunder is invalid. Thus the issue is not whether a quorum is required in order for the committee to be a competent tribunal, but whether committee rules, practices and records, and congressional rules, practices and records in analogous situations, are subject to attack by later oral testimony and to invalidation by the courts. All the parliamentary authorities, including those cited by the Court, agree that a quorum is required for action, other than adjournment, by any parliamentary body; and they agree that the customary law of such bodies is that, the presence of a quorum having been ascertained and recorded at the beginning of a session, that record stands unless and until the point of no quorum is raised. This is the universal practice. If it were otherwise, repeated useless roll calls would be necessary before every action. In this case, therefore, the record on the subject of quorum was entitled to full credit. Christoffel himself did not, during his testimony, raise the question of no quorum. Whether one not a member of the body would have been permitted to do so and what effect it would have, had he been refused, we need not decide. The fact is, he made no effort to raise the point. To have then even suggested the objection would have given opportunity to the Committee to correct it. And if there were not enough committee members present to make a , 93] legal body, he would be at liberty, if his objection were overruled, to walk out. Instead, he chose to falsify to the committee and now says that, despite the record, he should be allowed to prove that not enough members were present for his lie to be legal perjury. The Court agrees and holds that the House Rules requiring a quorum for action require this result. Since the constitutional provision governing the House itself also requires a quorum before that body can do business, this raises the question whether the decision now announced will also apply to the House itself. If it does, it could have the effect of invalidating any action taken or legislation passed without a record vote, which represents a large proportion of the business done by both House and Senate. The effect is illustrated by noting that such a rule would make possible the invalidation of not only this conviction for perjury, but the Perjury Act1 itself, as well as the Judicial Code2 which is now the source of this Court's authority to review the conviction. Moreover, this rule is in direct contravention of the Constitution which does not require either House or Senate, much less a committee, to take a record vote except3 'at the Desire of one-fifth of those Present.' Art. I, 5, cl. 3. The Court significantly omits citation of any prior decision in support of its present conclusion. 4 The reason , 94] is fairly clear-the others are inconsistent with this one. For example, in United States v. Ballin, , we held it to be within the competency of the House to prescribe any method reasonably certain to ascertain the , 95] fact of a quorum; that the courts are not concerned with the wisdom or advantages of any such rule-'with the courts the question is only one of power.' The House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule despite the limitations consistently imposed upon courts where such an issue is tendered. See Field v. Clark, , 496-498; United States v. Ballin, , 509; Flint v. Stone Tracy Co., , 31 S. Ct. 342, 345, 346, Ann.Cas. 1912B, 1312; cf. Leser v. Garnett, , 218. And see Coleman v. Miller, , 453-456, 981-983, 122 A.L.R. 695 and concurring opinions at , and 460- 470-990. We do not think we should devise a new rule for this particular case to extend aid to one who did not raise his objection when it could be met and who has been prejudiced by absence of a quorum only if we assume that, although he told a falsehood to eleven Congressmen, he would have been honest if two more had been present. But in no event should we put out a doctrine by which every Congressional Act or Committee action, and perhaps every judgment here, can be overturned on oral testimony of interested parties. We should affirm the conviction. |
0 | The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of "gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. 2511 (3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on 2511 (3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Held: 1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. 2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324. (a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315. (b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318. (c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321. 444 F.2d 651, affirmed.POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 324. BURGER, C. J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment, post, p. 335. REHNQUIST, J., took no part in the consideration or decision of the case.Assistant Attorney General Mardian argued the cause for the United States. With him on the briefs were Solicitor General Griswold and Robert L. Keuch.William T. Gossett argued the cause for respondents the United States District Court for the Eastern District of Michigan et al. With him on the brief was Abraham D. Sofaer. Arthur Kinoy argued the cause for respondents Sinclair et al. With him on the brief were William J. Bender and William Kunstler.Briefs of amici curiae urging affirmance were filed by Stephen I. Schlossberg for the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), and by Benjamin Dreyfus for the Black Panther Party et al. Briefs of amici curiae were filed by Herman Schwartz, Melvin L. Wulf, and Erwin B. Ellmann for the American Civil Liberties Union et al.; by John Ligtenberg for the American Federation of Teachers; and by the American Friends Service Committee.MR. JUSTICE POWELL delivered the opinion of the Court.The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees,1 without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time. Its resolution is a matter of national concern, requiring sensitivity both to the Government's right to protect itself from unlawful subversion and attack and to the citizen's right to be secure in his privacy against unreasonable Government intrusion.This case arises from a criminal proceeding in the United States District Court for the Eastern District of Michigan, in which the United States charged three defendants with conspiracy to destroy Government property in violation of 18 U.S.C. 371. One of the defendants, Plamondon, was charged with the dynamite bombing of an office of the Central Intelligence Agency in Ann Arbor, Michigan.During pretrial proceedings, the defendants moved to compel the United States to disclose certain electronic surveillance information and to conduct a hearing to determine whether this information "tainted" the evidence on which the indictment was based or which the Government intended to offer at trial. In response, the Government filed an affidavit of the Attorney General, acknowledging that its agents had overheard conversations in which Plamondon had participated. The affidavit also stated that the Attorney General approved the wiretaps "to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government."2 The logs of the surveillance were filed in a sealed exhibit for in camera inspection by the District Court.On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. 321 F. Supp. 1074 (ED Mich. 1971).The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction,3 that court held that the surveillance was unlawful and that the District Court had properly required disclosure of the overheard conversations, 444 F.2d 651 (1971). We granted certiorari, .ITitle III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510-2520, authorizes the use of electronic surveillance for classes of crimes carefully specified in 18 U.S.C. 2516. Such surveillance is subject to prior court order. Section 2518 sets forth the detailed and particularized application necessary to obtain such an order as well as carefully circumscribed conditions for its use. The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression. Much of Title III was drawn to meet the constitutional requirements for electronic surveillance enunciated by this Court in Berger v. New York, , and Katz v. United States, .Together with the elaborate surveillance requirements in Title III, there is the following proviso, 18 U.S.C. 2511 (3): "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power." (Emphasis supplied.) The Government relies on 2511 (3). It argues that "in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval." Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that: "Nothing contained in this chapter ... shall limit the constitutional power of the President to take such measures as he deems necessary to protect ..." against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers - among other things - to protection "against actual or potential attack or other hostile acts of a foreign power." But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.Section 2511 (3) certainly confers no power, as the language is wholly inappropriate for such a purpose. It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them. This view is reinforced by the general context of Title III. Section 2511 (1) broadly prohibits the use of electronic surveillance "[e]xcept as otherwise specifically provided in this chapter." Subsection (2) thereof contains four specific exceptions. In each of the specified exceptions, the statutory language is as follows:"It shall not be unlawful ... to intercept" the particular type of communication described.4 The language of subsection (3), here involved, is to be contrasted with the language of the exceptions set forth in the preceding subsection. Rather than stating that warrantless presidential uses of electronic surveillance "shall not be unlawful" and thus employing the standard language of exception, subsection (3) merely disclaims any intention to "limit the constitutional power of the President."The express grant of authority to conduct surveillances is found in 2516, which authorizes the Attorney General to make application to a federal judge when surveillance may provide evidence of certain offenses. These offenses are described with meticulous care and specificity.Where the Act authorizes surveillance, the procedure to be followed is specified in 2518. Subsection (1) thereof requires application to a judge of competent jurisdiction for a prior order of approval, and states in detail the information required in such application.5 Subsection (3) prescribes the necessary elements of probable cause which the judge must find before issuing an order authorizing an interception. Subsection (4) sets forth the required contents of such an order. Subsection (5) sets strict time limits on an order. Provision is made in subsection (7) for "an emergency situation" found to exist by the Attorney General (or by the principal prosecuting attorney of a State) "with respect to conspiratorial activities threatening the national security interest." In such a situation, emergency surveillance may be conducted "if an application for an order approving the interception is made ... within forty-eight hours." If such an order is not obtained, or the application therefore is denied, the interception is deemed to be a violation of the Act.In view of these and other interrelated provisions delineating permissible interceptions of particular criminal activity upon carefully specified conditions, it would have been incongruous for Congress to have legislated with respect to the important and complex area of national security in a single brief and nebulous paragraph. This would not comport with the sensitivity of the problem involved or with the extraordinary care Congress exercised in drafting other sections of the Act. We therefore think the conclusion inescapable that Congress only intended to make clear that the Act simply did not legislate with respect to national security surveillances.6 The legislative history of 2511 (3) supports this interpretation. Most relevant is the colloquy between Senators Hart, Holland, and McClellan on the Senate floor: "Mr. HOLLAND... . The section [2511 (3)] from which the Senator [Hart] has read does not affirmatively give any power... . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution... . We certainly do not grant him a thing. "There is nothing affirmative in this statement. "Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him. "Mr. HOLLAND. The Senator is correct. "Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so. "Mr. McCLELLAN. Even though intended, we could not do so. "Mr. HART... . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now. "In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511 (3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague ... . Section 2511 (3) merely says that if the President has such a power, then its exercise is in no way affected by title III."7 (Emphasis supplied.) One could hardly expect a clearer expression of congressional neutrality. The debate above explicitly indicates that nothing in 2511 (3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security. If we could accept the Government's characterization of 2511 (3) as a congressionally prescribed exception to the general requirement of a warrant, it would be necessary to consider the question of whether the surveillance in this case came within the exception and, if so, whether the statutory exception was itself constitutionally valid. But viewing 2511 (3) as a congressional disclaimer and expression of neutrality, we hold that the statute is not the measure of the executive authority asserted in this case. Rather, we must look to the constitutional powers of the President.IIIt is important at the outset to emphasize the limited nature of the question before the Court. This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Nor is there any question or doubt as to the necessity of obtaining a warrant in the surveillance of crimes unrelated to the national security interest. Katz v. United States, ; Berger v. New York, . Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power.8 Our present inquiry, though important, is therefore a narrow one. It addresses a question left open by Katz, supra, at 358 n. 23: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security ... ." The determination of this question requires the essential Fourth Amendment inquiry into the "reasonableness" of the search and seizure in question, and the way in which that "reasonableness" derives content and meaning through reference to the warrant clause. Coolidge v. New Hampshire, .We begin the inquiry by noting that the President of the United States has the fundamental duty, under Art. II, 1, of the Constitution, to "preserve, protect and defend the Constitution of the United States." Implicit in that duty is the power to protect our Government against those who would subvert or overthrow it by unlawful means. In the discharge of this duty, the President - through the Attorney General - may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government.9 The use of such surveillance in internal security cases has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946.10 Herbert Brownell, Attorney General under President Eisenhower, urged the use of electronic surveillance both in internal and international security matters on the grounds that those acting against the Government"turn to the telephone to carry on their intrigue. The success of their plans frequently rests upon piecing together shreds of information received from many sources and many nests. The participants in the conspiracy are often dispersed and stationed in various strategic positions in government and industry throughout the country."11 Though the Government and respondents debate their seriousness and magnitude, threats and acts of sabotage against the Government exist in sufficient number to justify investigative powers with respect to them.12 The covertness and complexity of potential unlawful conduct against the Government and the necessary dependency of many conspirators upon the telephone make electronic surveillance an effective investigatory instrument in certain circumstances. The marked acceleration in technological developments and sophistication in their use have resulted in new techniques for the planning, commission, and concealment of criminal activities. It would be contrary to the public interest for Government to deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens.It has been said that "[t]he most basic function of any government is to provide for the security of the individual and of his property." Miranda v. Arizona, (WHITE, J., dissenting). And unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered. As Chief Justice Hughes reminded us in Cox v. New Hampshire, : "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development - even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.13 We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, . Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements ... without any `technical trespass under ... local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails14 necessitate the application of Fourth Amendment safeguards.National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power," Marcus v. Search Warrant, . History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3):"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."15 The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.IIIAs the Fourth Amendment is not absolute in its terms, our task is to examine and balance the basic values at stake in this case: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression. If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.Though the Fourth Amendment speaks broadly of "unreasonable searches and seizures," the definition of "reasonableness" turns, at least in part, on the more specific commands of the warrant clause. Some have argued that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable," United States v. Rabinowitz, .16 This view, however, overlooks the second clause of the Amendment. The warrant clause of the Fourth Amendment is not dead language. Rather, it has been"a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement." Coolidge v. New Hampshire, 403 U.S., at 481. See also United States v. Rabinowitz, supra, at 68 (Frankfurter, J., dissenting); Davis v. United States, (Frankfurter, J., dissenting).Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel. "It is not fit," said Mansfield, "that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer." Leach v. Three of the King's Messengers, 19 How. St. Tr. 1001, 1027 (1765).Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed.These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.17 It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357. The Fourth Amendment contemplates a prior judicial judgment,18 not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943-944 (1963). The independent check upon executive discretion is not satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review.19 Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions. Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights. Beck v. Ohio, .It is true that there have been some exceptions to the warrant requirement. Chimel v. California, ; Terry v. Ohio, ; McDonald v. United States, ; Carroll v. United States, . But those exceptions are few in number and carefully delineated, Katz, supra, at 357; in general, they serve the legitimate needs of law enforcement officers to protect their own well-being and preserve evidence from destruction. Even while carving out those exceptions, the Court has reaffirmed the principle that the "police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," Terry v. Ohio, supra, at 20; Chimel v. California, supra, at 762.The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering. Brief for United States 15-16, 23-24; Reply Brief for United States 2-3.The Government further insists that courts "as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security." These security problems, the Government contends, involve "a large number of complex and subtle factors" beyond the competence of courts to evaluate. Reply Brief for United States 4.As a final reason for exemption from a warrant requirement, the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances "would create serious potential dangers to the national security and to the lives of informants and agents... . Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater `danger of leaks ..., because in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be apprised of the nature' of the surveillance." Brief for United States 24-25.These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases. Title III of the Omnibus Crime Control and Safe Streets Act already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage, and treason, 2516 (1) (a) and (c), each of which may involve domestic as well as foreign security threats. Moreover, a warrant application involves no public or adversary proceedings: it is an ex parte request before a magistrate or judge. Whatever security dangers clerical and secretarial personnel may pose can be minimized by proper administrative measures, possibly to the point of allowing the Government itself to provide the necessary clerical assistance.Thus, we conclude that the Government's concerns do not justify departure in this case from the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance. Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values. Nor do we think the Government's domestic surveillance powers will be impaired to any significant degree. A prior warrant establishes presumptive validity of the surveillance and will minimize the burden of justification in post-surveillance judicial review. By no means of least importance will be the reassurance of the public generally that indiscriminate wiretapping and bugging of law-abiding citizens cannot occur.IVWe emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.20 Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security.Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, : "In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness... . In determining whether a particular inspection is reasonable - and thus in determining whether there is probable cause to issue a warrant for that inspection - the need for the inspection must be weighed in terms of these reasonable goals of code enforcement." It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.VAs the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, , is controlling and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman, "the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect." 394 U.S., at 185.21 The judgment of the Court of Appeals is hereby Affirmed. THE CHIEF JUSTICE concurs in the result.MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. |
8 | The Interstate Commerce Act (Act) requires motor common carriers to publish their rates in tariffs filed with the Interstate Commerce Commission (ICC), 49 U.S.C. 10762, and prohibits both carriers and shippers from deviating from those rates, 10761. The Act also specifies that a carrier's rates must be nondiscriminatory, 10741, and that its rates and practices must be reasonable, 10701, and charges the ICC, upon determining that a rate or practice violates the statute, with prescribing the rate or practice to be followed, 10704(b)(1). Purportedly pursuant to this authority, the ICC, in its recent Negotiated Rates decisions, has adopted a policy that relieves a shipper of the obligation to pay the filed rate when it has privately negotiated a lower rate with the carrier. From 1981 to 1983, Quinn Freight Lines, a motor common carrier and a subsidiary of petitioner Maislin Industries, U.S., Inc., privately negotiated interstate shipment rates with respondent Primary Steel, Inc., that were lower than Quinn's filed rates. Quinn never filed the negotiated rates with the ICC. In 1983, Maislin filed for bankruptcy, and the bankrupt estate issued balance due bills to Primary for the difference between the filed rates and the negotiated rates. When Primary refused to pay the undercharges, the estate brought suit in the District Court, which referred the matter to the ICC. Rejecting the argument that it lacked the statutory power to release a shipper from liability for such undercharges, the ICC relied on its Negotiated Rates policy to hold that 10701 authorized it to consider all the circumstances surrounding an undercharge suit to determine whether collection of the filed rate would constitute an unreasonable practice. The ICC concluded that Maislin was not entitled to recover, since Quinn and Primary had negotiated other rates, and since Primary had relied on Quinn to file those rates, had reasonably believed that the amounts quoted and billed were the correct total charges, and had made full payment. The case returned to the District Court, which granted summary judgment for Primary on the basis of the ICC's decision. The Court of Appeals affirmed, agreeing with the District Court that the approach taken by the ICC was consistent with the Act. Held: The ICC's Negotiated Rates policy is inconsistent with the Act, and is therefore invalid. Pp. 126-136. (a) Since the duty to file rates under 10762 and the obligation to charge only those rates under 10761 have always been considered essential to preventing price discrimination violative of 10741, Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., , this Court has long held that the filed rate alone governs the legal rights of a shipper against a carrier, see, e.g., Keogh v. Chicago & Northwestern R. Co., , and that the statute forbids equitable defenses to collection of the filed tariff, see, e.g., Texas & Pacific R. Co. v. Mugg, , including the shipper's ignorance or the carrier's misquotation of rates, see, e.g., Louisville & Nashville R. Co. v. Maxwell, . Despite its sometimes harsh effects, this rigid "filed rate doctrine" has been strictly applied and consistently adhered to by the Court. See, e.g., Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., . Pp. 126-128. (b) Although, under the filed rate doctrine, the tariff rate is not enforceable if the ICC finds it to be unreasonable, see, e.g., Maxwell, supra, at 97, that exception is not applicable here. The ICC's determination that a carrier engages in an "unreasonable practice" when it attempts to collect the filed rate after the parties have negotiated a lower rate is not entitled to deference, since it conflicts with this Court's interpretation, from which Congress has not diverged, that the secret negotiation and collection of rates lower than the filed rate is discriminatory under 10741. See, e.g., Armour Packing Co. v. United States, . Stripped of its semantic cover, the Negotiated Rates policy and, more specifically, the ICC's interpretation of "unreasonable practices," thus stand revealed as flatly inconsistent with the Act's scheme as a whole and 10761 and 10762 in particular. Nor can the ICC's policy be justified on the ground that it prevents the carrier from receiving a windfall, i.e., the higher filed rate, from its failure to comply with 10762's directive to file the negotiated rate, since such "equities" are irrelevant to the application of 10761, which requires the carrier to collect the filed rate. Compliance with 10761 and 10762 is utterly central to the administration of the Act, and, by sanctioning adherence to unfiled rates, the Negotiated Rates policy effectively renders those sections nugatory and conflicts directly with the Act's core purposes. Pp. 128-133. (c) The passage of the Motor Carrier Act of 1980 (MCA) - which substantially deregulated the motor carrier industry for the avowed purpose of promoting competitive and efficient transportation services - does not justify the ICC's Negotiated Rates policy. Although the ICC has both the authority and the expertise generally to adopt new policies when faced with new developments in the industry, its power does not extend to a policy that directly conflicts with its governing statute. Nothing in the MCA repeals 10761 and 10762, and generalized congressional exhortations to "increase competition" cannot provide the ICC authority to alter the requirements of those sections as interpreted by this Court. Cf. Square D Co. v. Niagara Frontier Traffic Bureau, Inc., . The fact that, even before the MCA's passage, Congress had allowed the ICC to exempt motor contract carriers from the requirement that they adhere to the published tariff, see 10761(b), demonstrates that Congress is aware of the requirement, and has deliberately chosen not to disturb it with respect to motor common carriers. Pp. 133-136. 879 F.2d 400, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 138. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined. post, p. 138.Thomas M. Auchincloss, Jr., argued the cause for petitioners. With him on the briefs were Brian L. Troiano and David G. Sperry.Deputy Solicitor General Merrill argued the cause for respondents. With him on the brief for the Interstate Commerce Commission, respondent under this Court's Rule 12.4, were Solicitor General Starr, Michael R. Dreeben, Robert S. Burk, and Ellen D. Hanson. Henry M. Wick, Jr., Charles J. Streiff, and Edward E. Schmitt filed a brief for respondent Primary Steel Inc.* [Footnote *] Briefs of amici curiae urging reversal were filed for McLean Trucking Co. et al. by Paul O. Taylor; for Oneida Motor Freight, Inc., by Joseph L. Steinfeld, Jr., Robert B. Walker, and Miles L. Kavaller; for Overland Express, Inc., by James A. Knauer and James M. Carr; and for Robert Yaquinto, Jr., by Louis J. Wade.Briefs of amici curiae urging affirmance were filed for the National American Wholesale Grocers' Association et al. by William H. Borghesani, Jr., and Martin W. Bercovici; for Shippers National Freight Claim Council, Inc., by William J. Augello and Fritz R. Kahn; for the National Industrial Transportation League et al. by Frederic L. Wood, Nicholas J. DiMichael, Richard D. Fortin, Jan S. Amundson, Quentin Riegel, and Daniel J. Sweeney; and for Supreme Beef Processors, Inc., by John W. Bryant. JUSTICE BRENNAN delivered the opinion of the Court.Under the Interstate Commerce Act (Act), 49 U.S.C. 10101 et seq. (1982 ed.), motor common carriers must file their rates with the Interstate Commerce Commission (ICC or Commission), and both carriers and shippers must adhere to these rates. This case requires us to determine the validity of a policy recently adopted by the ICC that relieves a shipper of the obligation of paying the filed rate when the shipper and carrier have privately negotiated a lower rate. We hold that this policy is inconsistent with the Act.IAThe ICC regulates interstate transportation by motor common carriers to ensure that rates are both reasonable and nondiscriminatory. See 49 U.S.C. 10101(a), 10701(a), 10741(b) (1982 ed.). The Act provides that a "common carrier ... may not subject a person, place, port, or type of traffic to unreasonable discrimination." 10741. In addition, the Act states that "[a] rate ..., classification, rule, or practice related to transportation or service ... must be reasonable." 10701(a).1 The ICC has primary responsibility for determining whether a rate or practice is reasonable. See Texas & Pacific R. Co. v. Abilene Cotton Oil Co., . The Commission may investigate the reasonableness of a rate "on its own initiative or on complaint." 11701(a). When the Commission determines that a rate or practice violates the statute, it "shall prescribe the rate ... or practice to be followed." 10704(b)(1). Moreover, motor common carriers are liable "for damages resulting from the imposition of rates for transportation or service the Commission finds to be in violation" of the Act. 49 U.S.C. 11705(b)(3) (1982 ed., Supp. V).The Act requires a motor common carrier to "publish and file with the Commission tariffs containing the rates for transportation it may provide." 49 U.S.C. 10762(a)(1) (1982 ed.). The Act also specifically prohibits a carrier from providing services at any rate other than the filed (also known as tariff) rate: "Except as provided in this subtitle, a carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall provide that transportation or service only if the rate for the transportation or service is contained in a tariff that is in effect under this subchapter. That carrier may not charge or receive a different compensation for that transportation or service than the rate specified in the tariff whether by returning a part of that rate to a person, giving a person a privilege, allowing the use of a facility that affects the value of that transportation or service, or another device." 10761(a). Deviation from the filed rate may result in the imposition of civil or criminal sanctions on the carrier or shipper. See 11902-11904.2 As the Court has frequently stated, the statute does not permit either a shipper's ignorance or the carrier's misquotation of the applicable rate to serve as a defense to the collection of the filed rate. See Southern Pacific Transp. Co. v. Commercial Metals Co., ; Louisville & Nashville R. Co. v. Maxwell, . In 1986, however, the ICC concluded that changes in the motor carrier industry "clearly warrant a tempering of the former harsh rule of adhering to the tariff rate in virtually all cases." NITL - Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 I.C.C.2d 99, 106 (1986) (Negotiated Rates I). Under the new policy, when cases are referred to the Commission, it "decid[es] if the collection of undercharges would be an unreasonable practice." Id., at 100.In Negotiated Rates I, the Commission adverted to a growing trend in the motor carrier industry whereby carriers and shippers negotiate rates lower than those on file with the ICC and the shippers are billed for and remit payment at the negotiated rate. In many instances, however, the negotiated rate is never filed with the ICC. In some of those cases, the carrier subsequently files for bankruptcy and the trustee bills the shipper for the difference between the tariff rate and the negotiated rate, arguing that 10761 compels the collection of the filed, rather than negotiated, rate. Id., at 99. The Commission concluded that, under such circumstances, "it could be fundamentally unfair not to consider a shipper's equitable defenses to a claim for undercharges." Id., at 103. The Commission reasoned that the passage of the Motor Carrier Act of 1980, which significantly deregulated the motor carrier industry, justified the change in policy, for the new competitive atmosphere made strict application of 10761 unnecessary to deter discrimination. 3 I.C.C.2d, at 106. Moreover, the Commission asserted that it had authority under 10701 to determine whether the collection of the undercharge in a particular case would constitute an unreasonable practice. Id., at 103.3 The ICC clarified its new policy in NITL - Petition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 5 I.C.C.2d 623 (1989) (Negotiated Rates II). The Commission explained that its policy did not recognize "equitable defenses," but rather applied the "affirmative statutory requiremen[t] and obligatio[n]" of 10701 that a carrier's practices be reasonable. Id., at 631, n. 18.4 "[T]he Commission is finding to be an unreasonable practice ... a course of conduct consisting of: (1) negotiating a rate; (2) agreeing to a rate that the shipper reasonably relies upon as being lawfully filed; (3) failing, either willfully or otherwise, to publish the rate; (4) billing and accepting payment at the negotiated rate for (sometimes) numerous shipments; and (5) then demanding additional payment at higher rates." Id., at 628, n. 11.BThis case involves the application of the Commission's new Negotiated Rates policy. It arises from an action by petitioner Maislin Industries, U.S., Inc. (Maislin), to recover freight undercharges for 1,081 interstate shipments performed for a shipper, respondent Primary Steel (Primary), by petitioner's subsidiary, Quinn Freight Lines (Quinn). From 1981 to 1983, Quinn, a motor common carrier certificated by the ICC, privately negotiated rates with Primary that were lower than Quinn's rates then on file with the ICC. Quinn never filed the negotiated rates with the ICC.In 1983, Maislin filed for bankruptcy, and a post-petition audit of its accounts revealed undercharges of $187,923.36 resulting from billing Primary at the negotiated, rather than filed, rates. The agents of the bankrupt estate, pursuant to the authorization of the Bankruptcy Court, issued balance due bills to Primary for these undercharges. When Primary refused to pay the amounts demanded, the estate brought suit in the United States District Court for the Western District of Missouri under 49 U.S.C. 11706(a) (1982 ed.)5 for the difference between the filed rates and the negotiated rates.In its answer, Primary alleged that, since the parties had negotiated lower rates, rebilling at the tariff rates would constitute an unreasonable practice in violation of 10701; that the tariff rates themselves were not "reasonable" within the meaning of 10701; and that the asserted tariff rates were otherwise inapplicable to the shipments at issue. The District Court, finding these matters to be within the primary jurisdiction of the ICC, stayed the proceeding at Primary's request and referred the case to the Commission. App. 6-8.The ICC ruled in Primary's favor, rejecting Maislin's argument that the Commission lacked the statutory power to release a shipper from liability for such undercharges. Relying on Negotiated Rates I, the ICC reiterated that 10701 authorized it to "consider all the circumstances surrounding an undercharge suit" to determine whether collection of the filed rate would constitute an unreasonable practice. App. to Pet. for Cert. 35a. In the Commission's view, its role was "to undertake an analysis of whether a negotiated but unpublished rate existed, the circumstances surrounding assessment of the tariff rate, and any other pertinent facts." Id., at 36a. With respect to the instant controversy, the ICC concluded that Quinn and Primary had negotiated rates other than the tariff rates6 and that Primary had relied on Quinn to file the rates with the ICC.7 "Primary reasonably believed that the amounts quoted and billed by Quinn were the correct total charges for the transportation services it performed, that the amounts were reached as the result of negotiations between Primary and Quinn, and that, since full payment was made by [Primary]," Maislin was not entitled to recover the filed rates. Id., at 43a.The case returned to the District Court, where both parties moved for summary judgment. The court granted summary judgment for Primary, rejecting Maislin's argument that the ICC's new policy was, in effect, an impermissible recognition of equitable defenses to the application of the filed rate. The District Court concluded that the ICC's policy of determining case by case whether the collection of undercharges would be an unreasonable practice under 10701 was based on a permissible construction of the Act. 705 F.Supp. 1401, 1405-1406 (1988). The court also determined that the ICC's finding that Maislin had engaged in an unreasonable practice was supported by substantial evidence. Id., at 1406-1407.The Court of Appeals for the Eighth Circuit affirmed, agreeing that the approach taken by the ICC was consistent with the Act. The court reasoned that "[s]ection 10761(a), which mandates the collection of tariff rates, is only part of an overall regulatory scheme administered by the ICC, and there is no provision in the [Act] elevating this section over section 10701, which requires that tariff rates be reasonable." 879 F.2d 400, 405 (1989). The court concluded: "[T]he proper authority to harmonize these competing provisions is the ICC... . The approach taken by the ICC does not abolish the filed rate doctrine, but merely allows the ICC to consider all of the circumstances, including equitable defenses, to determine if strict adherence to the filed rate doctrine would constitute an unreasonable practice." Ibid. (citation omitted). Because the Courts of Appeals have disagreed on the important issue of whether the ICC's Negotiated Rates policy is consistent with the Act,8 we granted certiorari. . IIThe Act requires a motor common carrier to publish its rates in a tariff filed with the Commission. 49 U.S.C. 10762 (1982 ed.). This Court has long understood that the filed rate governs the legal relationship between shipper and carrier. In Keogh v. Chicago & Northwestern R. Co., , the Court explained:"The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate, as between carrier and shipper. The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier... . This stringent rule prevails because, otherwise, the paramount purpose of Congress - prevention of unjust discrimination - might be defeated." (Citations omitted.) See Square D Co. v. Niagara Frontier Tariff Bureau, Inc., ; Abilene Cotton Oil, 204 U.S., at 439; Texas & Pacific R. Co. v. Mugg, ; Gulf, C. & S.F.R. Co. v. Hefley, . The duty to file rates with the Commission, see 10762, and the obligation to charge only those rates, see 10761, have always been considered essential to preventing price discrimination and stabilizing rates. "In order to render rates definite and certain, and to prevent discrimination and other abuses, the statute require[s] the filing and publishing of tariffs specifying the rates adopted by the carrier, and ma[kes] these the legal rates, that is, those which must be charged to all shippers alike." Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., .Given the close interplay between the duties imposed by 10761-10762 and the statutory prohibition on discrimination, see 10741, this Court has read the statute to create strict filed rate requirements and to forbid equitable defenses to collection of the filed tariff. See Mugg, supra, at 245; Hefley, supra, at 101. The classic statement of the "filed rate doctrine," as it has come to be known, is explained in Louisville & Nashville R. Co. v. Maxwell, . In that case, the Court held that a passenger who purchased a train ticket at a rate misquoted by the ticket agent did not have a defense against the subsequent collection of the higher tariff rate by the railroad. "Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict, and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination." Id., at 97.9 This rigid approach was deemed necessary to prevent carriers from intentionally "misquoting" rates to shippers as a means of offering them rebates or discounts. See S. Rep. No. 46, 49th Cong., 1st Sess., 181, 188-190, 198-200 (1886). As the Commission itself found: "[P]ast experience shows that billing clerks and other agents of carriers might easily become experts in the making of errors and mistakes in the quotation of rates to favored shippers, while other shippers, less fortunate in their relations with carriers and whose traffic is less important, would be compelled to pay the higher published rates." Poor v. Chicago, B. & Q.R. Co., 12 I.C.C. 418, 421-422 (1907); see also Western Transp. Co. v. Wilson & Co., 682 F.2d 1227, 1230-1231 (CA7 1982). Despite the harsh effects of the filed rate doctrine, we have consistently adhered to it. See, e.g., Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd., ; Southern Pacific Transp. Co., 456 U.S., at 343-344; Baldwin v. Scott County Milling Co., ; Louisville & Nashville R. Co. v. Central Iron & Coal Co., .The filed rate doctrine, however, contains an important caveat: The filed rate is not enforceable if the ICC finds the rate to be unreasonable. See Maxwell, supra, at 97 (filed rate applies "unless it is found by the Commission to be unreasonable") (emphasis added); see also Keogh, supra at 163 ("The legal rights of shipper as against carrier in respect to a rate are measured by the published tariff. Unless and until suspended or set aside, this rate is made, for all purposes, the legal rate") (emphasis added). The filed rate doctrine, therefore, follows from the requirement that only filed rates be collected, as commanded by 10761 and 10762, the requirement that rates not be discriminatory, see 10741, and the requirement of 10701 that carriers adopt reasonable rates and practices. As we explained in Arizona Grocery, supra, although the filed rate is the legal rate, the Act"did not abrogate, but [rather] expressly affirmed, the common-law duty to charge no more than a reasonable rate... . In other words, the legal rate was not made by the statute a lawful rate - it was lawful only if it was reasonable. Under [the Act,] the shipper was bound to pay the legal rate; but if he could show that it was unreasonable, he might recover reparation. "The Act altered the common law by lodging in the Commission the power, theretofore exercised by courts, of determining the reasonableness of a published rate. If the finding on this question was against the carrier, reparation was to be awarded the shipper, and only the enforcement of the award was relegated to the courts." Id., at 384-385 (footnote omitted). In the instant case, the Commission did not find that the rates were unreasonable,10 but rather concluded that the carrier had engaged in an unreasonable practice in violation of 10701 that should preclude it from collecting the filed rates. The Commission argues that, under the filed rate doctrine, a finding that the carrier engaged in an unreasonable practice should, like a finding that the filed rate is unreasonable, disentitle the carrier to collection of the filed rate. We have never held that a carrier's unreasonable practice justifies departure from the filed tariff schedule.11 But we need not resolve this issue today, because we conclude that the justification for departure from the filed tariff schedule that the ICC set forth in its Negotiated Rates policy rests on an interpretation of the Act that is contrary to the language and structure of the statute as a whole and the requirements that make up the filed rate doctrine in particular.Under the Negotiated Rates policy, the ICC has determined that a carrier engages in an unreasonable practice when it attempts to collect the filed rate after the parties have negotiated a lower rate. The ICC argues that its conclusion is entitled to deference because 10701 does not specifically address the types of practices that are to be considered unreasonable and because its construction is rational and consistent with the statute. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., .We disagree. For a century, this Court has held that the Act, as it incorporates the filed rate doctrine, forbids as discriminatory the secret negotiation and collection of rates lower than the filed rate. See supra at 126-128. By refusing to order collection of the filed rate solely because the parties had agreed to a lower rate, the ICC has permitted the very price discrimination the Act by its terms seeks to prevent. See 49 U.S.C. 10741 (1982 ed.). As we stated in Armour Packing Co. v. United States, :"If the rates are subject to secret alteration by special agreement, then the statute will fail of its purpose to establish a rate duly published, known to all, and from which neither shipper nor carrier may depart... . [The Act] has provided for the establishing of one rate, to be filed as provided, subject to change as provided, and that rate to be while in force the only legal rate. Any other construction of the statute opens the door to the possibility of the very abuses of unequal rates which it was the design of the statute to prohibit and punish." Congress has not diverged from this interpretation, and we decline to revisit it ourselves. See California v. FERC, , (recognizing the respect "this Court must accord to long-standing and well-entrenched decisions, especially those interpreting statutes that underlie complex regulatory regimes"). Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning. Labeling the carrier's conduct an "unreasonable practice" cannot disguise the fact that the ICC is justifying deviation from the filed rate purely on the ground that the carrier and shipper have privately negotiated a lower rate. Stripped of its semantic cover, the Negotiated Rates policy and, more specifically, the Commission's interpretation of "unreasonable practices" thus stand revealed as flatly inconsistent with the statutory scheme as a whole, cf. Fort Stewart Schools v. FLRA, ; Dole v. Steelworkers, , and 10761 and 10762 in particular.Nor can the Negotiated Rates policy be justified as a remedy for the carrier's failure to comply with 10762's directive to file the negotiated rate with the ICC. See Negotiated Rates I, 3 I.C.C.2d at 103. The Commission argues that the carrier should not receive a windfall, i.e., the higher filed rate, from its failure to comply with the statute. See Brief for Federal Respondent 25-27. But 10761 requires the carrier to collect the filed rate, and we have never accepted the argument that such "equities" are relevant to the application of 10761.12 See, e.g., Maxwell, 237 U.S., at 97. Indeed, strict adherence to the filed rate has never been justified on the ground that the carrier is equitably entitled to that rate, but rather that such adherence, despite its harsh consequences in some cases, is necessary to enforcement of the Act. See supra, at 126-128.Compliance with 10761 and 10762 is "utterly central" to the administration of the Act. Regular Common Carrier Conference v. United StatesApp. D.C. 305, 308, 793 F.2d 376, 379 (1986). "Without [these provisions,] ... it would be monumentally difficult to enforce the requirement that rates be reasonable and nondiscriminatory, ... and virtually impossible for the public to assert its right to challenge the lawfulness of existing proposed rates." Ibid. (citations omitted). Although the ICC argues that the Negotiated Rates policy does not "abolis[h] the requirement in section 10761 that carriers must continue to charge the tariff rate," App. to Pet. for Cert. 36a, the policy, by sanctioning adherence to unfiled rates, undermines the basic structure of the Act. The ICC cannot review in advance the reasonableness of unfiled rates. Likewise, other shippers cannot know if they should challenge a carrier's rates as discriminatory when many of the carrier's rates are privately negotiated and never disclosed to the ICC. Thus, although we agree that the Commission may have discretion to craft appropriate remedies for violations of the statute, see ICC v. American Trucking Assns., Inc., , the "remedy" articulated in the Negotiated Rates policy effectively renders nugatory the requirements of 10761 and 10762, and conflicts directly with the core purposes of the Act.The ICC maintains, however, that the passage of the Motor Carrier Act of 1980 (MCA), Pub.L. 96-296, 94 Stat. 793, justifies its Negotiated Rates policy. The MCA substantially deregulated the motor carrier industry in many ways in an effort to "promote competitive and efficient transportation services." Pub.L. 96-296, 4, formerly codified at 49 U.S.C. 10101(a)(7) (1976 ed., Supp. V). In addition to loosening entry controls, see 5, codified at 49 U.S.C. 10922 (1982 ed.), the MCA also created a zone of reasonableness within which carriers can raise rates without interference from the ICC. See 11, codified at 49 U.S.C. 10708 (1982 ed.). More importantly, the MCA also allows motor carriers to operate as both common carriers and contract carriers. See 10(b)(1), amending 49 U.S.C. 10930(a) (1982 ed.). A contract carrier transports property under exclusive agreements with a shipper, see 10102(14), and the Commission has exempted all motor contract carriers from the requirements of 10761 and 10762. See Exemption of Motor Contract Carriers from Tariff Filing Requirements, 133 M.C.C. 150 (1983), aff'd sub nom. Central & Southern. Motor Freight Tariff Assn., Inc. v. United StatesApp. D.C. 226, 757 F.2d 301, cert. denied, , (1985).13 The Commission has also relaxed the regulations relating to motor common carriers, most significantly by allowing decreased rates to go into effect one day after the filing of a tariff. See Short Notice Effectiveness for Independently Filed Rates, 1 I.C.C.2d 146 (1984), aff'd sub nom. Southern Motor Carriers Rate Conference v. United States, 773 F.2d 1561 (CA11 1985).14 In Negotiated Rates I and II, the Commission concluded that, in light of the more competitive environment, strict adherence to the filed rate doctrine "is inappropriate and unnecessary to deter discrimination today." Negotiated Rates I, 3 I.C.C., at 106. According to the Commission, "`the inability of a shipper to rely on a carrier's interpretation of a tariff is a greater evil than the remote possibility that a carrier might intentionally misquote an applicable tariff rate to discriminate illegally between shippers.'" Ibid., quoting Seaboard System R. Co. v. United States, 794 F.2d 635, 638 (CA11 1986).We reject this argument. Although the Commission has both the authority and expertise generally to adopt new policies when faced with new developments in the industry, see American Trucking Assns., Inc. v. Atchison, T. & S.F.R. Co., , it does not have the power to adopt a policy that directly conflicts with its governing statute. Nothing in the MCA repeals 10761 and 10762 or casts doubt on our prior interpretation of those sections. Generalized congressional exhortations to "increase competition" cannot provide the ICC authority to alter the well-established statutory filed rate requirements. As we said in Square D Co. v. Niagara Frontier Traffic Bureau, Inc., with respect to a similarly longstanding judicial interpretation of the Act:"Congress must be presumed to have been fully cognizant of this interpretation of the statutory scheme, which had been a significant part of our settled law for over half a century, and ... Congress did not see fit to change it when Congress carefully reexamined this area of the law in 1980. [Respondent has] pointed to no specific statutory provision or legislative history indicating a specific congressional intention to overturn the longstanding ... construction; harmony with the general legislative purpose is inadequate for that formidable task." 476 U.S., at 420 (footnotes omitted). See also California v. FERC, 495 U.S., at 498, 499-500. Even before the passage of the MCA, Congress had allowed the Commission to exempt motor contract carriers from the requirement that they adhere to the published tariff, see 49 U.S.C. 10761(b) (1982 ed.), demonstrating that Congress is aware of the requirement and has deliberately chosen not to disturb it with respect to motor common carriers.15 If strict adherence to 10761 and 10762 as embodied in the filed rate doctrine has become an anachronism in the wake of the MCA, it is the responsibility of Congress to modify or eliminate these sections.Accordingly, the judgment of the Court of Appeals is reversed and the cause remanded for further proceedings consistent with this opinion. It is so ordered. |
0 | Police officers, armed with an arrest warrant but not a search warrant, were admitted to petitioner's home by his wife, where they awaited petitioner's arrival. When he entered he was served with the warrant. Although he denied the officers' request to "look around," they conducted a search of the entire house "on the basis of the lawful arrest." At petitioner's trial on burglary charges, items taken from his home were admitted over objection that they had been unconstitutionally seized. His conviction was affirmed by the California appellate courts, which held, despite their acceptance of petitioner's contention that the arrest warrant was invalid, that since the arresting officers had procured the warrant "in good faith," and since in any event they had had sufficient information to constitute probable cause for the arrest, the arrest was lawful. The courts also held that the search was justified as incident to a valid arrest. Held: Assuming the arrest was valid, the warrantless search of petitioner's house cannot be constitutionally justified as incident to that arrest. Pp. 755-768. (a) An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area "within the immediate control" of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. Pp. 762-763. (b) For the routine search of rooms other than that in which an arrest occurs, or for searching desk drawers or other closed or concealed areas in that room itself, absent well-recognized exceptions, a search warrant is required. P. 763. (c) While the reasonableness of a search incident to arrest depends upon "the facts and circumstances - the total atmosphere of the case," those facts and circumstances must be viewed in the light of established Fourth Amendment principles, and the only reasoned distinction is one between (1) a search of the person arrested and the area within his reach, and (2) more extensive searches. Pp. 765-766. (d) United States v. Rabinowitz, , and Harris v. United States, , on their facts, and insofar as the principles they stand for are inconsistent with this decision, are no longer to be followed. P. 768. (e) The scope of the search here was unreasonable under the Fourth and Fourteenth Amendments, as it went beyond petitioner's person and the area from within which he might have obtained a weapon or something that could have been used as evidence against him, and there was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. P. 768. 68 Cal. 2d 436, 439 P.2d 333, reversed.Keith C. Monroe, by appointment of the Court, , argued the cause and filed briefs for petitioner.Ronald M. George, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General.MR. JUSTICE STEWART delivered the opinion of the Court.This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to the petitioner's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to "look around." The petitioner objected, but was advised that "on the basis of the lawful arrest," the officers would nonetheless conduct a search. No search warrant had been issued.Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner's wife to open drawers and "to physically move contents of the drawers from side to side so that [they] might view any items that would have come from [the] burglary." After completing the search, they seized numerous items - primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour.At the petitioner's subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him, over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal, 61 Cal. Rptr. 714, and the California Supreme Court, 68 Cal. 2d 436, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest warrant was invalid because the supporting affidavit was set out in conclusory terms,1 but held that since the arresting officers had procured the warrant "in good faith," and since in any event they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner's home had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial constitutional claims. .Without deciding the question, we proceed on the hypothesis that the California courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident.Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, , in which the Court stated: "What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime." Id., at 392. That statement made no reference to any right to search the place where an arrest occurs, but was limited to a right to search the "person." Eleven years later the case of Carroll v. United States, , brought the following embellishment of the Weeks statement:"When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution." Id., at 158. (Emphasis added.) Still, that assertion too was far from a claim that the "place" where one is arrested may be searched so long as the arrest is valid. Without explanation, however, the principle emerged in expanded form a few months later in Agnello v. United States, - although still by way of dictum: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, ; Weeks v. United States, ." 269 U.S., at 30. And in Marron v. United States, , two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that case federal agents had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. When they arrived at the premises to be searched, they saw "that the place was used for retailing and drinking intoxicating liquors." Id., at 194. They proceeded to arrest the person in charge and to execute the warrant. In searching a closet for the items listed in the warrant they came across an incriminating ledger, concededly not covered by the warrant, which they also seized. The Court upheld the seizure of the ledger by holding that since the agents had made a lawful arrest, "[t]hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise." Id., at 199. That the Marron opinion did not mean all that it seemed to say became evident, however, a few years later in Go-Bart Importing Co. v. United States, , and United States v. Lefkowitz, . In each of those cases the opinion of the Court was written by Mr. Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of persons whom they had lawfully arrested,2 and had taken several papers from a desk, a safe, and other parts of the office. The Court noted that no crime had been committed in the agents' presence, and that although the agent in charge "had an abundance of information and time to swear out a valid [search] warrant, he failed to do so." 282 U.S., at 358. In holding the search and seizure unlawful, the Court stated: "Plainly the case before us is essentially different from Marron v. United States, . There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall who in pursuance of a conspiracy was actually engaged in running a saloon. As an incident to the arrest they seized a ledger in a closet where the liquor or some of it was kept and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force or general search or rummaging of the place." 282 U.S., at 358. This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a search of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. 285 U.S., at 465.The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in Harris v. United States, , decided in 1947. In that case, officers had obtained a warrant for Harris' arrest on the basis of his alleged involvement with the cashing and interstate transportation of a forged check. He was arrested in the living room of his four-room apartment, and in an attempt to recover two canceled checks thought to have been used in effecting the forgery, the officers undertook a thorough search of the entire apartment. Inside a desk drawer they found a sealed envelope marked "George Harris, personal papers." The envelope, which was then torn open, was found to contain altered Selective Service documents, and those documents were used to secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court rejected Harris' Fourth Amendment claim, sustaining the search as "incident to arrest." Id., at 151.Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States, , agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously "seiz[ing] the illicit distillery." Id., at 702. The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant - in spite of the fact that they had had more than enough time before the raid to do so - rendered the search unlawful. The opinion stated:"It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable... . This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities... . To provide the necessary security against unreasonable intrusions upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement. ... . . "A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." Id., at 705, 708. In 1950, two years after Trupiano,3 came United States v. Rabinowitz, , the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers "searched the desk, safe, and file cabinets in the office for about an hour and a half," id., at 59, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the principle giving law enforcement authorities "[t]he right `to search the place where the arrest is made in order to find and seize things connected with the crime ... .'" Id., at 61. Harris was regarded as "ample authority" for that conclusion. Id., at 63. The opinion rejected the rule of Trupiano that "in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable." The test, said the Court, "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." Id., at 66.Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested.4 And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis.Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on an unimpeachable line of authority. As Mr. Justice Frankfurter commented in dissent in that case, the "hint" contained in Weeks was, without persuasive justification, "loosely turned into dictum and finally elevated to a decision." 339 U.S., at 75. And the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court.Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's proscription of "unreasonable searches and seizures" must be read in light of "the history that gave rise to the words" - a history of "abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution ... ." 339 U.S., at 69. The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.5 In the scheme of the Amendment, therefore, the requirement that "no Warrants shall issue, but upon probable cause," plays a crucial part. As the Court put it in McDonald v. United States, : "We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals... . And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." Id., at 455-456. Even in the Agnello case the Court relied upon the rule that "[b]elief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause." 269 U.S., at 33. Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and "the burden is on those seeking [an] exemption [from the requirement] to show the need for it ... ." United States v. Jeffers, .Only last Term in Terry v. Ohio, , we emphasized that "the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure," id., at 20,6 and that "[t]he scope of [a] search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id., at 19. The search undertaken by the officer in that "stop and frisk" case was sustained under that test, because it was no more than a "protective ... search for weapons." Id., at 29. But in a companion case, Sibron v. New York, , we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection.7 Rather, the search had been made in order to find narcotics, which were in fact found.A similar analysis underlies the "search incident to arrest" principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.8 The "adherence to judicial processes" mandated by the Fourth Amendment requires no less.This is the principle that underlay our decision in Preston v. United States, . In that case three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held the search to have been unlawful under the Fourth Amendment, despite the contention that it had been incidental to a valid arrest. Our reasoning was straightforward: "The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime - things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest." Id., at 367.9 The same basic principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a proper arrest. We sustained the search, however, only because its scope had been "reasonably limited" by the "need to seize weapons" and "to prevent the destruction of evidence," to which Preston had referred. We emphasized that the arresting officer "did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons." 392 U.S., at 67.It is argued in the present case that it is "reasonable" to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively "reasonable" to search a man's house when he is arrested on his front lawn - or just down the street - than it is when he happens to be in the house at the time of arrest.10 As Mr. Justice Frankfurter put it:"To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an `unreasonable search' is forbidden - that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and the experience which it embodies and the safeguards afforded by it against the evils to which it was a response." United States v. Rabinowitz, 339 U.S., at 83 (dissenting opinion). Thus, although "[t]he recurring questions of the reasonableness of searches" depend upon "the facts and circumstances - the total atmosphere of the case," id., at 63, 66 (opinion of the Court), those facts and circumstances must be viewed in the light of established Fourth Amendment principles. It would be possible, of course, to draw a line between Rabinowitz and Harris on the one hand, and this case on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while in the case before us an entire house was searched. But such a distinction would be highly artificial. The rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items.11 The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.12 The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy was utilized here,13 but the fact remains that had he been arrested earlier in the day, at his place of employment rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 16 F.2d 202, remains: "After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home." Id., at 203. Rabinowitz and Harris have been the subject of critical commentary for many years,14 and have been relied upon less and less in our own decisions.15 It is time, for the reasons we have stated, to hold that on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed.Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, "unreasonable" under the Fourth and Fourteenth Amendments, and the petitioner's conviction cannot stand.16 Reversed. |
7 | Respondent highway carriers filed this civil action under 4 of the Clayton Act for injunctive relief and damages against petitioner highway carriers charging that petitioners conspired to monopolize the transportation of goods by instituting state and federal proceedings to resist and defeat applications by respondents to acquire, transfer, or register operating rights. Respondents alleged that the purpose of the conspiracy was "putting their competitors ... out of business, of weakening such competitors, of destroying, eliminating and weakening existing and potential competition, and of monopolizing the highway common carrier business in California and elsewhere," and deterring respondents from having free and unlimited access to the agencies and the courts. The District Court dismissed the complaint for failure to state a cause of action but the Court of Appeals reversed. Held: While any carrier has the right of access to administrative agencies and courts to defeat applications of competitors for certificates as highway carriers, and its purpose to eliminate an applicant as a competitor may be implicit in such opposition, its First Amendment rights are not immunized from regulation when they are used as an integral part of conduct violative of the antitrust laws. If the allegations that petitioners combined to harass and deter respondents from having "free and unlimited access" to agencies and courts, and to defeat that right by massive, concerted, and purposeful group activities are established as facts, a violation of the antitrust laws will have been demonstrated, and it is immaterial that the means used in violation may be lawful. Pp. 509-516. 432 F.2d 755, affirmed and remanded for trial.DOUGLAS, J., wrote the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART. J., filed an opinion concurring in the judgment, in which BRENNAN, J., joined, post, p. 516. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case. Boris H. Lakusta argued the cause for petitioners. With him on the briefs were W. D. Benson, John MacDonald Smith, and Daniel H. Benson.Michael N. Khourie argued the cause and filed a brief for respondents.Dennis N. Garvey filed a brief for Landmarks Holding Corp. et al. as amici curiae.Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. CHIEF JUSTICE BURGER.This is a civil suit under 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. 15, for injunctive relief and damages instituted by respondents, who are highway carriers operating in California, against petitioners, who are also highway carriers operating within, into, and from California. Respondents and petitioners are, in other words, competitors. The charge is that the petitioners conspired to monopolize trade and commerce in the transportation of goods in violation of the antitrust laws. The conspiracy alleged is a concerted action by petitioners to institute state and federal proceedings to resist and defeat applications by respondents to acquire operating rights or to transfer or register those rights. These activities, it is alleged, extend to rehearings and to reviews or appeals from agency or court decisions on these matters.The District Court dismissed the complaint for failure to state a cause of action, 1967 Trade Cas. § 72,298. The Court of Appeals reversed, 432 F.2d 755. The case is here on a petition for a writ of certiorari, which we granted. .The present case is akin to Eastern Railroad Conference v. Noerr Motor Freight, , where a group of trucking companies sued a group of railroads to restrain them from an alleged conspiracy to monopolize the long-distance freight business in violation of the antitrust laws and to obtain damages. We held that no cause of action was alleged insofar as it was predicated upon mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement. We rested our decision on two grounds: (1) "In a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act." Id., at 137. (2) "The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms." Id., at 138. We followed that view in United Mine Workers v. Pennington, .The same philosophy governs the approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition. See Johnson v. Avery, ; Ex parte Hull, .We conclude that it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-a-vis their competitors.We said, however, in Noerr that there may be instances where the alleged conspiracy "is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." 365 U.S., at 144.In that connection the complaint in the present case alleged that the aim and purpose of the conspiracy was "putting their competitors, including plaintiff, out of business, of weakening such competitors, of destroying, eliminating and weakening existing and potential competition, and of monopolizing the highway common carriage business in California and elsewhere."More critical are other allegations, which are too lengthy to quote, and which elaborate on the "sham" theory by stating that the power, strategy, and resources of the petitioners were used to harass and deter respondents in their use of administrative and judicial proceedings so as to deny them "free and unlimited access" to those tribunals. The result, it is alleged, was that the machinery of the agencies and the courts was effectively closed to respondents, and petitioners indeed became "the regulators of the grants of rights, transfers and registrations" to respondents - thereby depleting and diminishing the value of the businesses of respondents and aggrandizing petitioners' economic and monopoly power. See Note, 57 Calif. L. Rev. 518 (1969).Petitioners rely on our statement in Pennington that "Noerr shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose." 381 U.S., at 670. In the present case, however, the allegations are not that the conspirators sought "to influence public officials," but that they sought to bar their competitors from meaningful access to adjudicatory tribunals and so to usurp that decisionmaking process. It is alleged that petitioners "instituted the proceedings and actions ... with or without probable cause, and regardless of the merits of the cases." The nature of the views pressed does not, of course, determine whether First Amendment rights may be invoked; but they may bear upon a purpose to deprive the competitors of meaningful access to the agencies and courts. As stated in the opinion concurring in the judgment, such a purpose or intent, if shown, would be "to discourage and ultimately to prevent the respondents from invoking" the processes of the administrative agencies and courts and thus fall within the exception to Noerr.The political campaign operated by the railroads in Noerr to obtain legislation crippling truckers employed deception and misrepresentation and unethical tactics. We said:"Congress has traditionally exercised extreme caution in legislating with respect to problems relating to the conduct of political activities, a caution which has been reflected in the decisions of this Court interpreting such legislation. All of this caution would go for naught if we permitted an extension of the Sherman Act to regulate activities of that nature simply because those activities have a commercial impact and involve conduct that can be termed unethical." 365 U.S., at 141. Yet unethical conduct in the setting of the adjudicatory process often results in sanctions. Perjury of witnesses is one example. Use of a patent obtained by fraud to exclude a competitor from the market may involve a violation of the antitrust laws, as we held in Walker Process Equipment v. Food Machinery & Chemical Corp., . Conspiracy with a licensing authority to eliminate a competitor may also result in an antitrust transgression. Continental Ore Co. v. Union Carbide & Carbon Corp., ; Harman v. Valley National Bank, 339 F.2d 564 (CA9 1964). Similarly, bribery of a public purchasing agent may constitute a violation of 2 (c) of the Clayton Act, as amended by the Robinson-Patman Act. Rangen, Inc. v. Sterling Nelson & Sons, 351 F.2d 851 (CA9 1965).There are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations. Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process. Opponents before agencies or courts often think poorly of the other's tactics, motions, or defenses and may readily call them baseless. One claim, which a court or agency may think baseless, may go unnoticed; but a pattern of baseless, repetitive claims may emerge which leads the factfinder to conclude that the administrative and judicial processes have been abused. That may be a difficult line to discern and draw. But once it is drawn, the case is established that abuse of those processes produced an illegal result, viz., effectively barring respondents from access to the agencies and courts. Insofar as the administrative or judicial processes are involved, actions of that kind cannot acquire immunity by seeking refuge under the umbrella of "political expression."Petitioners, of course, have the right of access to the agencies and courts to be heard on applications sought by competitive highway carriers. That right, as indicated, is part of the right of petition protected by the First Amendment. Yet that does not necessarily give them immunity from the antitrust laws. It is well settled that First Amendment rights are not immunized from regulation when they are used as an integral part of conduct which violates a valid statute. Giboney v. Empire Storage Co., . In that case Missouri enacted a statute banning secondary boycotts and we sustained an injunction against picketing to enforce the boycott, saying:"It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed... . Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society." 336 U.S., at 502. In Associated Press v. United States, , we held that the Associated Press was not immune from the antitrust laws by reason of the fact that the press is under the shelter of the First Amendment. We said:"Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." Id., at 20. Accord, Citizen Publishing Co. v. United States, . Cf. Eastern States Lumber Assn. v. United States, .The rationale of those cases, when applied to the instant controversy, makes the following conclusions clear: (1) that any carrier has the right of access to agencies and courts, within the limits, of course, of their prescribed procedures, in order to defeat applications of its competitors for certificates as highway carriers; and (2) that its purpose to eliminate an applicant as a competitor by denying him free and meaningful access to the agencies and courts may be implicit in that opposition.First Amendment rights may not be used as the means or the pretext for achieving "substantive evils" (see NAACP v. Button, ) which the legislature has the power to control. Certainly the constitutionality of the antitrust laws is not open to debate. A combination of entrepreneurs to harass and deter their competitors from having "free and unlimited access" to the agencies and courts, to defeat that right by massive, concerted, and purposeful activities of the group are ways of building up one empire and destroying another. As stated in the opinion concurring in the judgment, that is the essence of those parts of the complaint to which we refer. If these facts are proved, a violation of the antitrust laws has been established. If the end result is unlawful, it matters not that the means used in violation may be lawful.What the proof will show is not known, for the District Court granted the motion to dismiss the complaint. We must, of course, take the allegations of the complaint at face value for the purposes of that motion. Walker Process Equipment v. Food Machinery & Chemical Corp., 382 U.S., at 174-175. On their face the above-quoted allegations come within the "sham" exception in the Noerr case, as adapted to the adjudicatory process.Accordingly we affirm the Court of Appeals and remand the case for trial. So ordered.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment.In the Noerr case1 this Court held, in a unanimous opinion written by Mr. Justice Black, that a conspiracy by railroads to influence legislative and executive action in order to destroy the competition of truckers in the long-haul freight business was wholly immune from the antitrust laws.2 This conclusion, we held, was required in order to preserve the informed operation of governmental processes and to protect the right of petition guaranteed by the First Amendment.3 Today the Court retreats from Noerr, and in the process tramples upon important First Amendment values. For that reason I cannot join the Court's opinion.In Noerr the defendants were joined together in an effort to induce legislative and executive action. Here, so the complaint alleges, the defendants (petitioners) have joined to induce administrative and judicial action. The difference in type of governmental body might make a difference in the applicability of the antitrust laws if the petitioners had made misrepresentations of fact or law to these tribunals, or had engaged in perjury, or fraud, or bribery.4 But, contrary to implications in the Court's opinion, there are in this case no allegations whatever of any such conduct on the part of the petitioners. And, in the absence of such conduct, I can see no difference, so far as the antitrust laws and the First Amendment are concerned, between trying to influence executive and legislative bodies and trying to influence administrative and judicial bodies. NAACP v. Button, ; Brotherhood of Railroad Trainmen v. Virginia Bar, ; United Mine Workers v. Illinois State Bar Assn., ; United Transportation Union v. State Bar of Michigan, .The Court concedes that the petitioners' "right of access to the agencies and courts to be heard on applications sought by competitive highway carriers ... is part of the right of petition protected by the First Amendment." Yet, says the Court, their joint agreement to exercise that right "does not necessarily give them immunity from the antitrust laws." Ante, at 513. It is difficult to imagine a statement more totally at odds with Noerr. For what that case explicitly held is that the joint exercise of the constitutional right of petition is given immunity from the antitrust laws.While disagreeing with the Court's opinion, I would nonetheless remand this case to the District Court for trial. The complaint contains allegations that the petitioners have: 1. Agreed jointly to finance and to carry out and publicize a consistent, systematic and uninterrupted program of opposing `with or without probable cause and regardless of the merits' every application, with insignificant exceptions, for additional operating rights or for the registration or transfer of operating rights, before the California PUC, the ICC, and the courts on appeal. 2. Carried out such agreement (a) by appearing as protestants in all proceedings instituted by plaintiffs and others in like position or by instituting complaints in opposition to applications or transfers or registrations; (b) by establishing a trust fund to finance the foregoing, consisting of contributions monthly in amounts proportionate to each defendant's annual gross income; (c) by publicizing and making known to plaintiffs and others in like position the foregoing program. Under these allegations, liberally construed, the respondents are entitled to prove that the real intent of the conspirators was not to invoke the processes of the administrative agencies and courts, but to discourage and ultimately to prevent the respondents from invoking those processes. Such an intent would make the conspiracy "an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified." Eastern Railroad Conference v. Noerr Motor Freight, 365 U.S., at 144.It is only on this basis that I concur in the judgment of the Court. |
8 | Appeal dismissed. Reported below: 407 A. 2d 198.Gary A. Myers argued the cause for appellants. With him on the briefs was Michael Boudin.Regina Mullen Small, State Solicitor of Delaware, argued the cause for appellee. With her on the brief were John A. Parkins, Jr., Assistant State Solicitor, and Roger A. Akin, Thomas M. LaPenta, and Timothy A. Casey, Deputy Attorneys General.* [Footnote *] Carol R. Golubock, Daniel Yohalem, and Marian Wright Edelman filed a brief for the American Orthopsychiatric Association et al. as amici curiae urging reversal.Briefs of amici curiae were filed by Marcia Robinson Lowry and Bruce J. Ennis for the American Civil Liberties Union; by Janet Fink, Carol Sherman, Jane M. Sufian, and Henry S. Weintraub for the Legal Aid Society of the City of New York, Juvenile Rights Division; and by Douglas J. Besharov and Robert M. Horowitz for the National Association of Counsel for Children et al.PER CURIAM.The appeal is dismissed for want of a properly presented federal question.JUSTICE BRENNAN, with whom JUSTICE WHITE joins, dissenting.Appellants, a half brother and sister, are the natural parents of five children who were in the custody of the Division of Social Services of the Delaware Department of Health and Social Services at the beginning of this litigation.1 After determining that the children should be put up for adoption,2 the Division filed suit pursuant to Delaware law to obtain termination of appellants' parental rights over their children. The Superior Court of Delaware ordered termination, and the Supreme Court of Delaware affirmed.3 Appellants appealed to this Court, arguing that the termination order and the Delaware statute authorizing it were unconstitutional. We noted probable jurisdiction. .The Court today dismisses this appeal for want of a properly presented federal question, thereby permitting the termination order to remain in effect despite the existence of a substantial federal constitutional challenge to the Delaware statutory scheme under which the order was entered.4 Because I believe that the federal question was properly presented within the definition of that requirement in our cases, I dissent from this dismissal. Instead, I would vacate the judgment below, and remand for reconsideration in light of supervening changes in the factual circumstances and the applicable state law.IAppellants challenge the constitutionality of certain portions of the former Del. Code Ann., Tit. 13, 1101-1112 (1975), in effect while this litigation was pending in the state courts. These provisions established a "procedure for termination of parental rights for the purpose of adoption or, if a suitable adoption plan cannot be effected, for the purpose of providing for the care of the child by some other plan which may or may not contemplate the continued possibility of eventual adoption." 1103. Petitions for termination of parental rights could be filed by certain specified categories of persons, including the Division. 1104 (8). Upon a finding by the Superior Court that the parents were "not fitted to continue to exercise parental rights," 1103 (4), and that termination of existing parental rights would be "in the best interests of the child," the court was required to issue an order of termination, and to transfer parental rights to another person, organization, or agency. 1108 (a). The effect of the termination order was "that all of the rights, duties, privileges and obligations recognized by law between the [parents] and the child shall forever thereafter cease to exist as fully and to all intents and purposes as if the child and the [parents] were and always had been strangers." 1112. Either an order of termination or the consent of the natural parents was required before children in the custody of the State could be placed for adoption. 907-908.Appellants argue here, as they did at each stage of the litigation in the state courts, that this statutory scheme for termination of parental rights was invalid under the United States Constitution. Specifically, they contend: (1) that Del. Code Ann., Tit. 13, 1103 (4) (1975), which provides for such termination where the parent is "not fitted," is unconstitutionally vague and indefinite; (2) that a higher standard than the mere "preponderance of the evidence" is required to terminate parental rights; and (3) that substantive due process forbids termination of parental rights in the absence of a demonstration of a compelling state interest, in the form of specific findings of existing or threatened injury to the child.5 There is no doubt that appellants raised their federal constitutional claim in a timely manner in both the Superior Court6 and the Supreme Court7 of Delaware, nor that the Delaware Supreme Court explicitly considered and rejected the federal constitutional challenge.8 Dismissal of this appeal for want of a properly presented federal question is, therefore, unwarranted. The practice in this Court has been to dismiss an appeal taken under 28 U.S.C. 1257 (2) for want of a properly presented federal question only when the federal question was not raised at the proper juncture in the state-court proceedings or in accordance with reasonable state rules. Jones v. Florida, (BRENNAN, J., dissenting); Godchaux Co. v. Estopinal, ; R. Stern & E. Gressman, Supreme Court Practice 380-381 (5th ed. 1978).9 See, e. g., Street v. New York, ; Safeway Stores, Inc. v. Oklahoma Retail Grocers Assn., , n. 7 (1959); Raley v. Ohio, ; Bailey v. Anderson, ; Asbury Hospital v. Cass County, ; Charleston Federal Savings & Loan Assn. v. Alderson, ; Hunter Co. v. McHugh, ; Pennsylvania R. Co. v. Illinois Brick Co., ; Whitney v. California, ; Live Oak Water Users' Assn. v. Railroad Comm'n, ; Rooker v. Fidelity Trust Co., ; Zadig v. Baldwin, ; Crowell v. Randell, 10 Pet. 368, 391-392, 398 (1836); cf. Cardinale v. Louisiana, (dismissal of writ of certiorari); Beck v. Washington, (same).10 If the record shows that a federal constitutional challenge to a state statute was brought to the attention of the state court "with fair precision and in due time," then "the claim is ... regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, . Indeed, if the highest state court reaches the federal constitutional question and decides it on the merits, this Court will consider the case despite any possible failure of the litigants to raise the federal question in compliance with state procedural requirements. Charleston Federal Savings & Loan Assn. v. Alderson, supra, at 185-186; Louisville & Nashville R. Co. v. Higdon, ; see Cox Broadcasting Corp. v. Cohn, .Since appellants challenged the constitutionality of the Delaware statutory scheme at each stage of the state-court litigation, and the Delaware Supreme Court expressly addressed the issue, ruling that the termination-of-parental-rights procedure was constitutional, this Court's dismissal of the appeal for want of a properly presented federal question is unprecedented and inexplicable.11 IIThe living situation of appellants and their children has changed dramatically since the trial court proceedings in this case. Doe and Roe have ceased to live together, thus ending the incestuous relationship that formed the predicate for the Superior Court's original judgment of unfitness. See App. to Juris. Statement 5b. According to their attorney, Doe now resides in another State, while Roe has married and now lives with her husband and his child in Delaware. Tr. of Oral Arg. 4. Doe and Roe have not seen their five children since 1975.12 The children, who ranged in age from 11 months to 4 years old when the Superior Court issued its first order of termination in 1975, are now about 6 to 9 years old. The children have never lived together as a family, and are now in four separate placements. Appellants' attorney stated at oral argument that "the eventual goal of the mother" is to obtain custody of her children, and that she would permit the father to visit them. Id., at 3. There is no evidence on any of these matters in the record because it has been closed since December 1976. Id., at 39.Moreover, Del. Code Ann., Tit. 13, 1103 (1975), was amended, effective July 11, 1980, to alter the standard for termination of parental rights. Instead of requiring a finding of "unfitness" as a predicate for termination, the new statute provides for termination if the parents "are not able, or have failed, to plan adequately for the child's physical needs or his mental and emotional health and development" and:"a. In the case of a child in the care of an authorized agency: "1. The child has been in the care of an authorized agency for 1 year, or there is a history of previous placement or placements of this child, or a history of neglect, abuse, or lack of care of other children by this parent; and "2. The conditions which led to the child's placement still persist, and there appears to be little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future. "b. In the case of a child in the home of the stepparent or blood relative: "1. The child has resided in the home of the stepparent or blood relative for a period of at least 1 year; and "2. The Court finds the noncustodial parent or parents incapable of exercising parental responsibilities, and that there appears to be little likelihood such parent or parents will be able to exercise such parental responsibilities in the foreseeable future." Del. Code Ann., Tit. 13, 1103 (5) (Supp. 1980).13 As stated in Bell v. Maryland, , this Court has "long followed a uniform practice where a supervening event raises a question of state law pertaining to a case pending on review here. That practice is to vacate and reverse the judgment and remand the case to the state court, so that it may reconsider it in the light of the supervening change in state law." In the exercise of our jurisdiction under 28 U.S.C. 1257, this Court has the power "not only to correct error in the judgment under review but to make such disposition of the case as justice requires." Patterson v. Alabama, . And, as Chief Justice Hughes further observed in Patterson: "[I]n determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered. We may recognize such a change, which may affect the result, by setting aside the judgment and remanding the case so that the state court may be free to act." Ibid. See Giles v. Maryland, (plurality opinion); Thorpe v. Housing Authority, ; Trunkline Gas Co. v. Hardin County, ; Wolfe v. North Carolina, , n. 13 (1960); Williams v. Georgia, ; State Farm Mutual Automobile Ins. Co. v. Duel, ; Ashcraft v. Tennessee, ; Walling v. James V. Reuter, Inc., ; New York ex rel. Whitman v. Wilson, ; Vanderbark v. Owens-Illinois Glass Co., ; State Tax Comm'n v. Van Cott, ; Honeyman v. Hanan, ; Villa v. Van Schaick, ; Pagel v. MacLean, ; Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, ; Dorchy v. Kansas, , 291 (1924); Gulf, C. & S. F. R. Co. v. Dennis, , 509 (1912); see also Piccirillo v. New York, , n. 2 (1971) (BRENNAN, J., dissenting from dismissal of writ of certiorari).14 The instant case falls squarely within the principle of Bell and Patterson. The change in the factual circumstances and in the applicable state statute might well produce a different result under Delaware law. This Court should not decide what effect these changes might have under state law,15 or how the Supreme Court of Delaware might decide this case under the new circumstances and amended statute.16 See Bell v. Maryland, 378 U.S., at 237. Nor, however, should we "ignore the supervening change in state law and proceed to decide the federal constitutional questions presented by this case. To do so would be to decide questions which, because of the possibility that the state court would now reverse the [order of termination], are not necessarily presented for decision." Ibid., see id., at 241; Missouri ex rel. Wabash R. Co. v. Public Service Comm'n, supra, at 131; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 507.IIITo argue that the proper disposition of this case is to vacate and remand rather than to dismiss for want of a properly presented federal question is not merely to quibble over words. Appellants in this case are parents who have been irrevocably separated from their children by process of a state law they contend is unconstitutional. To vacate and remand is to recognize that supervening events have made further state-court proceedings necessary before this Court can reach the constitutional questions; to dismiss is to end the litigation, leaving Doe and Roe without any means to vindicate their parental rights.17 See Pagel v. MacLean, supra, at 269; Gulf, C. & S. F. R. Co. v. Dennis, supra, at 509.The appellate jurisdiction of this Court is not discretionary. Hicks v. Miranda, . Having raised a federal constitutional challenge to the former Del. Code Ann., Tit. 13, 1103 (4) (1975), under which their parental rights were terminated, and having received a final judgment from the highest court of the State upholding the statute and affirming the termination order, appellants have a right to appellate review. I can discern no basis for dismissing this appeal for want of a properly presented federal question, and therefore respectfully dissent. |
11 | Respondent Indianapolis Power & Light Co. (IPL), a regulated Indiana utility and an accrual-basis taxpayer, requires customers having suspect credit to make deposits with it to assure prompt payment of future electric bills. Prior to termination of service, customers who satisfy a credit test can obtain a refund of their deposits or can choose to have the amount applied against future bills. Although the deposits are at all times subject to the company's unfettered use and control, IPL does not treat them as income at the time of receipt but carries them on its books as current liabilities. Upon audit of IPL's returns for the tax years at issue, petitioner Commissioner of Internal Revenue asserted deficiencies, claiming that the deposits are advance payments for electricity and therefore are taxable to IPL in the year of receipt. The Tax Court ruled in favor of IPL on its petition for redetermination, holding that the deposits' principal purpose is to serve as security rather than as prepayment of income. The Court of Appeals affirmed.Held: The customer deposits are not advance payments for electricity and therefore do not constitute taxable income to IPL upon receipt. Although IPL derives some economic benefit from the deposits, it does not have the requisite "complete dominion" over them at the time they are made, the crucial point for determining taxable income. IPL has an obligation to repay the deposits upon termination of service or satisfaction of the credit test. Moreover, a customer submitting a deposit makes no commitment to purchase any electricity at all. Thus, while deposits eventually may be used to pay for electricity by virtue of customer default or choice, IPL's right to retain them at the time they are made is contingent upon events outside its control. This construction is consistent with the Tax Court's longstanding treatment of sums deposited to secure a tenant's performance of a lease agreement, perhaps the closest analogy to the present situation. Pp. 207-214. 857 F.2d 1162, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court.Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Knapp, Alan I. Horowitz, Jonathan S. Cohen, and William A. Whitledge.Larry J. Stroble argued the cause for respondent. With him on the brief was Stanley C. Fickle.* [Footnote *] Briefs of amici curiae urging affirmance were filed for American Information Technologies Corporation et al. by Jerome B. Libin, Bradley M. Seltzer, Jim J. Kilpatric, and Lawrence H. Cohen; for El Paso Electric Company by Stephen R. Nelson; for Oak Industries, Inc., and Subsidiaries by John P. Warner and Samuel M. Maruca; and for Wisconsin Electric Power Co. and Affiliated Companies by Joseph E. Tierney, Jr., and Margaret T. Lund.JUSTICE BLACKMUN delivered the opinion of the Court.Respondent Indianapolis Power & Light Company (IPL) requires certain customers to make deposits with it to assure payment of future bills for electric service. Petitioner Commissioner of Internal Revenue contends that these deposits are advance payments for electricity and therefore constitute taxable income to IPL upon receipt. IPL contends otherwise.IIPL is a regulated Indiana corporation that generates and sells electricity in Indianapolis and its environs. It keeps its books on the accrual and calendar year basis. During the years 1974 through 1977, approximately 5% of IPL's residential and commercial customers were required to make deposits "to insure prompt payment," as the customers' receipts stated, of future utility bills. These customers were selected because their credit was suspect. Prior to March 10, 1976, the deposit requirement was imposed on a case-by-case basis. IPL relied on a credit test but employed no fixed formula. The amount of the required deposit ordinarily was twice the customer's estimated monthly bill. IPL paid 3% interest on a deposit held for six months or more. A customer could obtain a refund of the deposit prior to termination of service by requesting a review and demonstrating acceptable credit. The refund usually was made in cash or by check, but the customer could choose to have the amount applied against future bills.In March 1976, IPL amended its rules governing the deposit program. See 170 Ind. Admin. Code 4-1-15 (1988). Under the amended rules, the residential customers from whom deposits were required were selected on the basis of a fixed formula. The interest rate was raised to 6% but was payable only on deposits held for 12 months or more. A deposit was refunded when the customer made timely payments for either 9 consecutive months, or for 10 out of 12 consecutive months so long as the 2 delinquent months were not themselves consecutive. A customer could obtain a refund prior to that time by satisfying the credit test. As under the previous rules, the refund would be made in cash or by check, or, at the customer's option, applied against future bills. Any deposit unclaimed after seven years was to escheat to the State. See Ind. Code 32-9-1-6(a) (1988).1 IPL did not treat these deposits as income at the time of receipt. Rather, as required by state administrative regulations, the deposits were carried on its books as current liabilities. Under its accounting system, IPL recognized income when it mailed a monthly bill. If the deposit was used to offset a customer's bill, the utility made the necessary accounting adjustments. Customer deposits were not physically segregated in any way from the company's general funds. They were commingled with other receipts and at all times were subject to IPL's unfettered use and control. It is undisputed that IPL's treatment of the deposits was consistent with accepted accounting practice and applicable state regulations.Upon audit of respondent's returns for the calendar years 1974 through 1977, the Commissioner asserted deficiencies. Although other items initially were in dispute, the parties were able to reach agreement on every issue except that of the proper treatment of customer deposits for the years 1975, 1976, and 1977. The Commissioner took the position that the deposits were advance payments for electricity and therefore were taxable to IPL in the year of receipt. He contended that the increase or decrease in customer deposits outstanding at the end of each year represented an increase or decrease in IPL's income for the year.2 IPL disagreed and filed a petition in the United States Tax Court for redetermination of the asserted deficiencies.In a reviewed decision, with one judge not participating, a unanimous Tax Court ruled in favor of IPL. 88 T. C. 964 (1987). The court followed the approach it had adopted in City Gas Co. of Florida v. Commissioner, 74 T. C. 386 (1980), rev'd, 689 F.2d 943 (CA11 1982). It found it necessary to "continue to examine all of the facts and circumstances," 88 T. C., at 976, and relied on several factors in concluding that the deposits in question were properly excluded from gross income. It noted, among other things, that only 5% of IPL's customers were required to make deposits; that the customer rather than the utility controlled the ultimate disposition of a deposit; and that IPL consistently treated the deposits as belonging to the customers, both by listing them as current liabilities for accounting purposes and by paying interest. Id., at 976-978.The United States Court of Appeals for the Seventh Circuit affirmed the Tax Court's decision. 857 F.2d 1162 (1988). The court stated that "the proper approach to determining the appropriate tax treatment of a customer deposit is to look at the primary purpose of the deposit based on all the facts and circumstances ... ." Id., at 1167. The court appeared to place primary reliance, however, on IPL's obligation to pay interest on the deposits. It asserted that "as the interest rate paid on a deposit to secure income begins to approximate the return that the recipient would be expected to make from `the use' of the deposit amount, the deposit begins to serve purposes that comport more squarely with a security deposit." Id., at 1169. Noting that IPL had paid interest on the customer deposits throughout the period in question, the court upheld, as not clearly erroneous, the Tax Court's determination that the principal purpose of these deposits was to serve as security rather than as prepayment of income. Id., at 1170.Because the Seventh Circuit was in specific disagreement with the Eleventh Circuit's ruling in City Gas Co. of Florida, supra, we granted certiorari to resolve the conflict. .IIWe begin with the common ground. IPL acknowledges that these customer deposits are taxable as income upon receipt if they constitute advance payments for electricity to be supplied.3 The Commissioner, on his part, concedes that customer deposits that secure the performance of non-income-producing covenants - such as a utility customer's obligation to ensure that meters will not be damaged - are not taxable income. And it is settled that receipt of a loan is not income to the borrower. See Commissioner v. Tufts, ("Because of [the repayment] obligation, the loan proceeds do not qualify as income to the taxpayer"); James v. United States, (accepted definition of gross income "excludes loans"); Commissioner v. Wilcox, . IPL, stressing its obligation to refund the deposits with interest, asserts that the payments are similar to loans. The Commissioner, however, contends that a deposit which serves to secure the payment of future income is properly analogized to an advance payment for goods or services. See Rev. Rul. 72-519, 1972-2 Cum. Bull. 32, 33 ("[W]hen the purpose of the deposit is to guarantee the customer's payment of amounts owed to the creditor, such a deposit is treated as an advance payment, but when the purpose of the deposit is to secure a property interest of the taxpayer the deposit is regarded as a true security deposit").In economic terms, to be sure, the distinction between a loan and an advance payment is one of degree rather than of kind. A commercial loan, like an advance payment, confers an economic benefit on the recipient: a business presumably does not borrow money unless it believes that the income it can earn from its use of the borrowed funds will be greater than its interest obligation. See Illinois Power Co. v. Commissioner, 792 F.2d 683, 690 (CA7 1986). Even though receipt of the money is subject to a duty to repay, the borrower must regard itself as better off after the loan than it was before. The economic benefit of a loan, however, consists entirely of the opportunity to earn income on the use of the money prior to the time the loan must be repaid. And in that context our system is content to tax these earnings as they are realized. The recipient of an advance payment, in contrast, gains both immediate use of the money (with the chance to realize earnings thereon) and the opportunity to make a profit by providing goods or services at a cost lower than the amount of the payment.The question, therefore, cannot be resolved simply by noting that respondent derives some economic benefit from receipt of these deposits.4 Rather, the issue turns upon the nature of the rights and obligations that IPL assumed when the deposits were made. In determining what sort of economic benefits qualify as income, this Court has invoked various formulations. It has referred, for example, to "undeniable accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." Commissioner v. Glenshaw Glass Co., . It also has stated: "When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, `he has received income ...'" James v. United States, 366 U.S., at 219, quoting North American Oil Consolidated v. Burnet, . IPL hardly enjoyed "complete dominion" over the customer deposits entrusted to it. Rather, these deposits were acquired subject to an express "obligation to repay," either at the time service was terminated or at the time a customer established good credit. So long as the customer fulfills his legal obligation to make timely payments, his deposit ultimately is to be refunded, and both the timing and method of that refund are largely within the control of the customer.The Commissioner stresses the fact that these deposits were not placed in escrow or segregated from IPL's other funds, and that IPL therefore enjoyed unrestricted use of the money. That circumstance, however, cannot be dispositive. After all, the same might be said of a commercial loan; yet the Commissioner does not suggest that a loan is taxable upon receipt simply because the borrower is free to use the funds in whatever fashion he chooses until the time of repayment. In determining whether a taxpayer enjoys "complete dominion" over a given sum, the crucial point is not whether his use of the funds is unconstrained during some interim period. The key is whether the taxpayer has some guarantee that he will be allowed to keep the money. IPL's receipt of these deposits was accompanied by no such guarantee.Nor is it especially significant that these deposits could be expected to generate income greater than the modest interest IPL was required to pay. Again, the same could be said of a commercial loan, since, as has been noted, a business is unlikely to borrow unless it believes that it can realize benefits that exceed the cost of servicing the debt. A bank could hardly operate profitably if its earnings on deposits did not surpass its interest obligations; but the deposits themselves are not treated as income.5 Any income that the utility may earn through use of the deposit money of course is taxable, but the prospect that income will be generated provides no ground for taxing the principal.The Commissioner's advance-payment analogy seems to us to rest upon a misconception of the value of an advance payment to its recipient. An advance payment, like the deposits at issue here, concededly protects the seller against the risk that it would be unable to collect money owed it after it has furnished goods or services. But an advance payment does much more: it protects against the risk that the purchaser will back out of the deal before the seller performs. From the moment an advance payment is made, the seller is assured that, so long as it fulfills its contractual obligation, the money is its to keep. Here, in contrast, a customer submitting a deposit made no commitment to purchase a specified quantity of electricity, or indeed to purchase any electricity at all.6 IPL's right to keep the money depends upon the customer's purchase of electricity, and upon his later decision to have the deposit applied to future bills, not merely upon the utility's adherence to its contractual duties. Under these circumstances, IPL's dominion over the fund is far less complete than is ordinarily the case in an advance-payment situation.The Commissioner emphasizes that these deposits frequently will be used to pay for electricity, either because the customer defaults on his obligation or because the customer, having established credit, chooses to apply the deposit to future bills rather than to accept a refund. When this occurs, the Commissioner argues, the transaction, from a cash-flow standpoint, is equivalent to an advance payment. In his view this economic equivalence mandates identical tax treatment.7 Whether these payments constitute income when received, however, depends upon the parties' rights and obligations at the time the payments are made. The problem with petitioner's argument perhaps can best be understood if we imagine a loan between parties involved in an ongoing commercial relationship. At the time the loan falls due, the lender may decide to apply the money owed him to the purchase of goods or services rather than to accept repayment in cash. But this decision does not mean that the loan, when made, was an advance payment after all. The lender in effect has taken repayment of his money (as was his contractual right) and has chosen to use the proceeds for the purchase of goods or services from the borrower. Although, for the sake of convenience, the parties may combine the two steps, that decision does not blind us to the fact that in substance two transactions are involved.8 It is this element of choice that distinguishes an advance payment from a loan. Whether these customer deposits are the economic equivalents of advance payments, and therefore taxable upon receipt, must be determined by examining the relationship between the parties at the time of the deposit. The individual who makes an advance payment retains no right to insist upon the return of the funds; so long as the recipient fulfills the terms of the bargain, the money is its to keep. The customer who submits a deposit to the utility, like the lender in the previous hypothetical, retains the right to insist upon repayment in cash; he may choose to apply the money to the purchase of electricity, but he assumes no obligation to do so, and the utility therefore acquires no unfettered "dominion" over the money at the time of receipt.When the Commissioner examines privately structured transactions, the true understanding of the parties, of course, may not be apparent. It may be that a transfer of funds, though nominally a loan, may conceal an unstated agreement that the money is to be applied to the purchase of goods or services. We need not, and do not, attempt to devise a test for addressing those situations where the nature of the parties' bargain is legitimately in dispute. This particular respondent, however, conducts its business in a heavily regulated environment; its rights and obligations vis-a-vis its customers are largely determined by law and regulation rather than by private negotiation. That the utility's customers, when they qualify for refunds of deposits, frequently choose to apply those refunds to future bills rather than taking repayment in cash does not mean that any customer has made an unspoken commitment to do so.Our decision is also consistent with the Tax Court's longstanding treatment of lease deposits - perhaps the closest analogy to the present situation. The Tax Court traditionally has distinguished between a sum designated as a prepayment of rent - which is taxable upon receipt - and a sum deposited to secure the tenant's performance of a lease agreement. See, e. g., J. & E. Enterprises, Inc. v. Commissioner, 26 TCM 944 (1967).9 In fact, the customer deposits at issue here are less plausibly regarded as income than lease deposits would be. The typical lease deposit secures the tenant's fulfillment of a contractual obligation to pay a specified rent throughout the term of the lease. The utility customer, however, makes no commitment to purchase any services at all at the time he tenders the deposit.We recognize that IPL derives an economic benefit from these deposits. But a taxpayer does not realize taxable income from every event that improves his economic condition. A customer who makes this deposit reflects no commitment to purchase services, and IPL's right to retain the money is contingent upon events outside its control. We hold that such dominion as IPL has over these customer deposits is insufficient for the deposits to qualify as taxable income at the time they are made.The judgment of the Court of Appeals is affirmed. It is so ordered. |
0 | Where petitioner timely raised the issue of voluntariness of his confession, the testimony on the point was conflicting, and the trial judge failed to rule on the matter but left the question solely to the jury, held: reversed and remanded for a hearing in accordance with the rule in Jackson v. Denno, . The trial judge need not make formal findings of fact or write an opinion, but it must clearly appear from the record that he made a primary finding of voluntariness before the confession was introduced into evidence before the jury. Pp. 542-544. 221 Ga. 190, 144 S. E. 2d 103, reversed and remanded.Jack Greenberg argued the cause for petitioner. With him on the brief were James M. Nabrit III, Anthony G. Amsterdam and Howard Moore, Jr.Dewey Hayes, Solicitor General of Georgia, and E. Freeman Leverett, Deputy Assistant Attorney General, argued the cause for respondent. With them on the brief was Arthur K. Bolton, Attorney General.MR. JUSTICE CLARK delivered the opinion of the Court.Petitioner, a Negro, has been convicted of raping a white woman and has been given the death penalty. He raises five federal questions1 for consideration by this Court, among which is that his Fourteenth Amendment rights to a fair trial were violated by the state trial judge's failure to determine the voluntariness of his alleged confession prior to its admission into evidence before the jury, as required by the rule in Jackson v. Denno, . The Supreme Court of Georgia ruled that Jackson was not applicable and affirmed petitioner's conviction, Sims v. State, 221 Ga. 190, 144 S. E. 2d 103. We granted certiorari limited to the five questions, . We have determined that petitioner's case is controlled by Jackson, supra, and therefore we do not reach any of the other issues raised.I.The record indicates that on April 13, 1963, a 29-year-old white woman was driving home alone in her automobile when petitioner drove up behind her in his car, forced her off the road into a ditch, took the woman from her car into nearby woods and forcibly raped her. When he returned to his car, he could not start the engine so he left the scene on foot. Some four hours later he was apprehended by some Negro workers who had been alerted to be on the watch for him. He told these Negroes that he had attacked a white woman. They then turned petitioner over to their employer who delivered him to two state patrolmen. He was then taken to the office of a Doctor Jackson who had previously examined the victim. Petitioner's clothing was removed in order to test it for blood stains. Petitioner testified that while he was in Doctor Jackson's office he was knocked down, kicked over the right eye and pulled around the floor by his private parts. He was taken to a hospital owned by Doctor Jackson, which was adjacent to his office, where four stitches were taken in his forehead. Thereafter the patrolmen took petitioner to Waycross, Georgia, some 30 miles distant, where he was placed in the county jail. During that evening, he saw a deputy sheriff whom he had known for some 13 years and who was on duty on the same floor of the jail where petitioner was incarcerated. He agreed to make a statement and was taken to an interview room where, in the presence of the sheriff, the deputy sheriff and two police officers, he signed a written confession. Two days later he was arraigned.Prior to trial petitioner filed a motion to suppress the confession as being the result of coercion. A hearing was held before the court out of the presence of the jury. The sheriff and the deputy testified to the circumstances surrounding the taking and signing of the confession. Petitioner testified as to the abuse he had received while in Doctor Jackson's office. He testified that he "felt pretty rough for about two or three weeks [after the incident], more on my private than I did on my face" and that he "was paining a right smart." There was no contradictory testimony taken. The court denied the motion to suppress without opinion or findings and the confession was admitted into evidence at petitioner's trial.At the trial, Doctor Jackson was a witness for the State. On cross-examination he denied that he had knocked petitioner down while the latter was in his office, or that he had kicked him in the forehead but made no mention of the other abuse about which petitioner testified. The doctor stated that petitioner was not abused in his presence but he refused to say whether the patrolmen present abused petitioner as he was not in the office at all times while the petitioner was there with the patrolmen. In this state of the record petitioner's testimony in this regard was left uncontradicted.II.There is no actual ruling or finding in the record showing that the trial judge determined the voluntariness of the confession. Although he admitted it into evidence, it appears that he was only following a long-standing state practice that the "State having made out a prima facie case that the alleged confession was freely and voluntarily made, it was a question for the jury to determine on conflicting evidence whether the alleged confession was freely and voluntarily made." Downs v. State, 208 Ga. 619, 621, 68 S. E. 2d 568, 570. Defense counsel called the court's attention to the Jackson v. Denno ruling of this Court and stated that he did not "know whether the procedure being followed at this time satisfies the rule decided by the Supreme Court on June 22nd, 1964, that the Court must make judicial determination whether the statement was made voluntarily before it is read to the jury." In his charge to the jury the judge directed that it was for the jury to determine whether the confession was actually made or not and to disregard it if not made freely and voluntarily.III.On appeal to the Supreme Court of Georgia, it was held proper for the trial judge to have left the question of the voluntariness of the confession to the jurors with instructions that they should disregard it if they should determine that it was not, in fact, voluntarily made. Indeed, that court specifically found that the "related facts made a prima facie showing that the statement was freely and voluntarily made and admissible in evidence." 221 Ga., at 198, 144 S. E. 2d, at 110. It therefore seems clear from the opinion of the highest court of Georgia that it has applied its own rule rather than having followed the rule set down in Jackson for the procedural determination of the voluntariness of a confession. This conclusion is buttressed by the fact that the court below also found that the "Georgia rule presents the question to the jury without giving them the judgment of the judge." Id., at 200, 144 S. E. 2d, at 111. This is the exact procedural device which is proscribed by the rule in Jackson.IV.The Supreme Court of Georgia reasoned, however, that Jackson was not applicable because of the safeguards that Georgia's laws erect around the use of confessions. It pointed out that under Georgia law, before a confession may be admitted it must be corroborated and a showing made that it was freely and voluntarily given. In addition, the trial judge has the power to set aside the verdict of the jury and grant a new trial if, in his opinion, the jury was in error. The court concluded that the rule in Jackson is satisfied by Georgia law and that "It would be difficult to find a more complete satisfaction of the requirement of Jackson than Georgia provides." Id., at 201, 144 S. E. 2d, at 111. The court also felt that if this not be true, in any event, "the unsound implications of Jackson should not be extended one iota to make it cover cases not explicity covered by it such as this case where there was no evidence to make any issue of voluntariness. Without an issue there is nothing to try." Ibid. We cannot agree. There was a definite, clear-cut issue here. Petitioner testified that Doctor Jackson physically abused him while he was in his office and that he was suffering from that abuse when he made the statement, thereby rendering such confession involuntary and the result of coercion. The doctor admitted that he saw petitioner on the floor of his office; that he helped him disrobe and that he knew that petitioner required hospital treatment because of the laceration over his eye but he denied that petitioner was actually abused in his presence. He was unable to state, however, that the state patrolmen did not commit the alleged offenses against petitioner's person because he was not in the room during the entire time in which the petitioner and the patrolmen were there. In fact, the doctor was quite evasive in his testimony and none of the officers present during the incident were produced as witnesses. Petitioner's claim of mistreatment, therefore, went uncontradicted as to the officers and was in conflict with the testimony of the physician. Under Jackson, it was for the trial judge to first decide these conflicts and discrepancies. This he failed to do.Furthermore, Georgia's highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt. Jackson, having been decided June 22, 1964, was binding on the courts of Georgia in this case, it having been tried October 7, 1964. Such rule is, as we have said, a constitutional rule binding upon the States and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed.The judgment is, therefore, reversed and cause is remanded for a hearing as provided by Jackson v. Denno, supra, at 393-396.2 It is so ordered.MR. JUSTICE BLACK dissents for the reasons stated in his dissent in Jackson v. Denno, 378 U.S., at 401. |
8 | When officials of the Environmental Protection Agency (EPA) and the State of Tennessee, accompanied by employees of a private firm under contract to EPA, attempted to inspect one of respondent's Tennessee plants, respondent refused entry to the private contractors unless they would sign an agreement not to disclose trade secrets. The private contractors refused to do so, and EPA later obtained an administrative warrant authorizing the private employees to conduct the inspection. After respondent refused to honor the warrant, the Government began a civil contempt proceeding against respondent in Federal District Court in Tennessee, and respondent moved to quash the warrant on the ground that private contractors are not "authorized representatives" under 114(a)(2) of the Clean Air Act for the purposes of conducting inspections of premises subject to regulation under the Act. The court denied respondent's motion, and on appeal respondent reiterated its statutory argument and also asserted that the Government should be collaterally estopped from asserting that 114(a)(2) authorizes private contractors to conduct inspections, because of a contrary decision of the Court of Appeals for the Tenth Circuit in a case involving the same parties which arose from respondent's similar refusal to allow private contractors, accompanying EPA and Wyoming officials, to enter and inspect one of respondent's Wyoming plants. The Court of Appeals in the present case reversed the District Court, agreeing with respondent both on the merits of the statutory issue and, alternatively, on the collateral-estoppel issue.Held: The doctrine of mutual defensive collateral estoppel is applicable against the Government to preclude relitigation of the same issue already litigated against the same party in another case involving virtually identical facts. Cf. Montana v. United States, . Pp. 169-174. (a) The doctrine of collateral estoppel generally applies to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action involving the same parties. The exception to the applicability of the principles of collateral estoppel for "unmixed questions of law" arising in "successive actions involving unrelated subject matter," Montana v. United States, supra, at 162, does not apply here. Whatever the purpose or extent of the exception, there is no reason to apply it here to allow the Government to litigate twice with the same party an issue arising in both cases from virtually identical facts. Pp. 169-172. (b) Nor is an exception to the doctrine of mutual defensive estoppel justified here on the asserted ground that its application in Government litigation involving recurring issues of public importance will freeze the development of the law. That argument is persuasive only to prevent the application of collateral estoppel against the Government in the absence of mutuality. While the Sixth Circuit's decision prevents EPA from relitigating the 114(a)(2) issue with respondent, it still leaves EPA free to litigate the same issue in the future with other litigants. Pp. 173-174. 684 F.2d 1174, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the result, post, p. 174.Deputy Solicitor General Claiborne argued the cause for the United States. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Walker, Joshua I. Schwartz, and Dirk D. Snel.Charles F. Lettow argued the cause and filed a brief for respondent.JUSTICE REHNQUIST delivered the opinion of the Court.In March 1980, when the Environmental Protection Agency (EPA) tried to inspect one of respondent Stauffer Chemical Co.'s Tennessee plants using private contractors in addition to full-time EPA employees, Stauffer refused to allow the private contractors to enter the plant. Stauffer argues that private contractors are not "authorized representatives" as that term is used in 114(a)(2) of the Clean Air Act, 84 Stat. 1687, 42 U.S.C. 7414(a)(2) (1976 ed., Supp. V). Stauffer also argues that the Government should be estopped from relitigating the question of whether private contractors are "authorized representatives" under the statute because it has already litigated that question against Stauffer and lost in connection with an attempted inspection of one of Stauffer's plants in Wyoming. The Court of Appeals agreed with Stauffer on the merits and also on the collateral-estoppel issue. Without reaching the merits, we affirm the Court of Appeals' holding that the Government is estopped from relitigating the statutory issue against Stauffer.On March 27, 1980, officials from EPA and the State of Tennessee, accompanied by employees of a private firm under contract to EPA, attempted to inspect Stauffer's elemental phosphorus production plant in Mt. Pleasant, Tenn. Stauffer refused entry to the private contractors unless they would sign an agreement not to disclose trade secrets. When the private contractors refused to do so, the entire group left without making the inspection. EPA later obtained an administrative warrant authorizing the private employees to conduct the inspection, and Stauffer refused to honor the warrant.On the following day, EPA began a civil contempt proceeding against Stauffer in Federal District Court in Tennessee, and Stauffer simultaneously moved to quash the warrant. It argued that private contractors are not "authorized representatives" under 114(a)(2) of the Clean Air Act for the purposes of conducting inspections of premises subject to regulation under that Act.1 The District Court denied Stauffer's motion to quash, accepting EPA's argument that the inspection authority conferred upon "authorized representatives" by the statute extends to private contractors retained by EPA. 511 F. Supp. 744 (MD Tenn. 1981). On appeal, Stauffer reiterated its statutory argument and also asserted that the Government should be collaterally estopped on the basis of the decision in Stauffer Chemical Co. v. EPA, 647 F.2d 1075 (CA10 1981) (hereinafter Stauffer I), from contending that 114(a)(2) authorizes private contractors to conduct inspections of Stauffer's plants. In Stauffer I officials of EPA and the State of Wyoming, accompanied by employees of a different private firm under contract to EPA, attempted to conduct an inspection of Stauffer's phosphate ore processing plant near Sage, Wyo. As in the present case, Stauffer insisted that the private contractors sign a nondisclosure agreement, and when they declined to do so, Stauffer refused to allow them to enter the plant. EPA obtained an administrative warrant authorizing the private contractors to conduct the inspection, and Stauffer refused to honor the warrant. Stauffer then instituted an action in United States District Court in Wyoming seeking to quash the warrant and to enjoin EPA from using private contractors in inspecting Stauffer's Wyoming plants. The District Court issued the injunction, and the United States Court of Appeals for the Tenth Circuit affirmed, holding that private contractors are not "authorized representatives" pursuant to 114(a)(2). Id., at 1079.The Sixth Circuit in the present case (hereinafter Stauffer II) reversed the District Court, adopting alternative grounds for its decision. Judge Weick, who delivered the opinion of the court, agreed with the Tenth Circuit that private contractors are not authorized to conduct inspections under the Clean Air Act. 684 F.2d 1174, 1181-1190 (1982). Relying on Montana v. United States, , he also held that the Government was collaterally estopped by Stauffer I from litigating the statutory question again against Stauffer. 684 F.2d, at 1179-1181.2 Judge Jones wrote a separate opinion concurring on the collateral-estoppel issue and concluding that it was inappropriate for the court to reach the merits. Id., at 1190-1192. Judge Siler also wrote separately, dissenting from Judge Weick's opinion on the collateral-estoppel issue but concurring in his opinion on the merits. Id., at 1192-1193. For the reasons which follow, we agree that the doctrine of mutual defensive collateral estoppel is applicable against the Government to preclude relitigation of the same issue already litigated against the same party in another case involving virtually identical facts. Accordingly, we affirm the judgment of the Court of Appeals without reaching the merits.In Montana v. United States, supra, we held that the United States was estopped from relitigating in federal court the question of whether the Montana gross receipts tax on contractors of public, but not private, construction firms violates the Supremacy Clause of the United States Constitution. A public contractor, financed and directed by the Federal Government, had already litigated that question in state court, and the Montana Supreme Court unanimously had upheld the tax. In approving the defensive use of collateral estoppel against the Government in Montana, we first determined that there was mutuality of parties, see United States v. Mendoza, ante, at 164, n. 9, that the issue sought to be relitigated was identical to the issue already unsuccessfully litigated in state court, and that there had been no change in controlling facts or legal principles since the state-court action. 440 U.S., at 155-162.We next looked to see whether there were any special circumstances warranting an exception to the otherwise applicable rules of preclusion. One exception which we mentioned as possibly relevant is the exception for "unmixed questions of law" arising in "successive actions involving unrelated subject matter." Id., at 162; see United States v. Moser, . Noting that the exception first articulated in Moser is "difficult to delineate," 440 U.S., at 163, we nonetheless had no trouble finding it inapplicable in Montana because of the close alignment in both time and subject matter between the federal-court and the state-court actions. Ibid.3 Like Montana the case at bar involves the defensive use of collateral estoppel against the Government by a party to a prior action. The Government does not argue that the 114(a)(2) issues in Stauffer I and Stauffer II are dissimilar nor that controlling law or facts have changed since Stauffer I. The Government instead argues that an exception to the normal rules of estoppel should apply because the statutory question here is an "unmixed question of law" arising in substantially unrelated actions. It also argues that the special role of the Government in litigating recurring issues of public importance warrants an exception in cases such as this one. We disagree with both of the Government's arguments.As commonly explained, the doctrine of collateral estoppel can apply to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action. United States v. Mendoza, ante, p. 154; Allen v. McCurry, . Our cases, however, recognize an exception to the applicability of the principles of collateral estoppel for "unmixed questions of law" arising in "successive actions involving unrelated subject matter." Montana v. United States, supra, at 162; see also Allen v. McCurry, supra, at 95, n. 7; United States v. Moser, supra, at 242. While our discussion in Montana indicates that the exception is generally recognized, we are frank to admit uncertainty as to its application. The exception seems to require a determination as to whether an "issue of fact" or an "issue of law" is sought to be relitigated and then a determination as to whether the "issue of law" arises in a successive case that is so unrelated to the prior case that relitigation of the issue is warranted. Yet we agree that, for the purpose of determining when to apply an estoppel,"[w]hen the claims in two separate actions between the same parties are the same or are closely related ... it is not ordinarily necessary to characterize an issue as one of fact or of law for purposes of issue preclusion... . In such a case, it is unfair to the winning party and an unnecessary burden on the courts to allow repeated litigation of the same issue in what is essentially the same controversy, even if the issue is regarded as one of `law'." Restatement (Second) of Judgments 28, Comment b (1982).4 Thus in Montana, without assigning the label "issue of law" to the claim sought to be relitigated, we determined that the exception was inapplicable because of the close alignment of time and subject matter between the state-court action and the federal-court action. If the exception was inapplicable in Montana, as we held that it was, we have no trouble concluding that it is also inapplicable here.Both Stauffer I and Stauffer II arose as a result of EPA's overview inspection program for supervising state efforts to enforce national air quality standards. See n. 1, supra. In both cases private contractors, in addition to EPA and state employees, tried to inspect plants owned by respondent. The inspections occurred just over two weeks apart, and in each case, Stauffer refused to allow the private contractors to enter its plant. Any factual differences between the two cases, such as the difference in the location of the plants and the difference in the private contracting firms involved, are of no legal significance whatever in resolving the issue presented in both cases.Admittedly the purpose underlying the exception for "unmixed questions of law" in successive actions on unrelated claims is far from clear. But whatever its purpose or extent, we think that there is no reason to apply it here to allow the Government to litigate twice with the same party an issue arising in both cases from virtually identical facts. Indeed we think that applying an exception to the doctrine of mutual defensive estoppel in this case would substantially frustrate the doctrine's purpose of protecting litigants from burden-some relitigation and of promoting judicial economy. See Parklane Hosiery Co. v. Shore, .5 The Government attempts unpersuasively to supply justifications for overriding those economy concerns and allowing relitigation in cases such as this one. It argues here, as it did in United States v. Mendoza, ante, p. 154, that the application of collateral estoppel in Government litigation involving recurring issues of public importance will freeze the development of the law. But we concluded in United States v. Mendoza that that argument is persuasive only to prevent the application of collateral estoppel against the Government in the absence of mutuality. When estoppel is applied in a case where the Government is litigating the same issue arising under virtually identical facts against the same party, as here, the Government's argument loses its force. The Sixth Circuit's decision prevents EPA from relitigating the 114(a)(2) issue with Stauffer, but it still leaves EPA free to litigate the same issue in the future with other litigants.6 The Government also argues that because EPA is a federal agency charged with administering a body of law nationwide, the application of collateral estoppel against it will require EPA to apply different rules to similarly situated parties, thus resulting in an inequitable administration of the law. For example, EPA points to the situation created by the recent decision in Bunker Hill Company Lead & Zinc Smelter v. EPA, 658 F.2d 1280 (1981), where the Ninth Circuit accepted EPA's argument that 114(a)(2) authorizes inspections by private contractors. EPA argues that if it is foreclosed from relitigating the statutory issue with Stauffer, then Stauffer plants within the Ninth Circuit will benefit from a rule precluding inspections by private contractors while plants of Stauffer's competitors will be subject to the Ninth Circuit's contrary rule. Tr. of Oral Arg. 17-18. Whatever the merits of EPA's argument, for the purpose of deciding this case, it is enough to say that the issue of whether EPA would be estopped in the Ninth Circuit is not before the Court. Following our usual practice of deciding no more than is necessary to dispose of the case before us, we express no opinion on that application of collateral estoppel.We therefore find the Government's arguments unpersuasive in this case as justifications for limiting otherwise applicable rules of estoppel. Because we conclude that the Court of Appeals was correct in applying the doctrine of collateral estoppel against the Government here, we decline to reach the merits of the statutory question in this case. See Montana v. United States, 440 U.S., at 153. On the estoppel issue, therefore, the judgment of the Court of Appeals is Affirmed. |
8 | Respondents, California citizens, sued petitioner Hertz Corporation in a California state court for claimed state-law violations. Hertz sought removal to the Federal District Court under 28 U. S. C. §§1332(d)(2), 1441(a), claiming that because it and respondents were citizens of different States, §§1332(a)(1), (c)(1), the federal court possessed diversity-of-citizenship jurisdiction. Respondents, however, claimed that Hertz was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking under §1332(c)(1), which provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." To show that its "principal place of business" was in New Jersey, not California, Hertz submitted a declaration stating, among other things, that it operated facilities in 44 States, that California accounted for only a portion of its business activity, that its leadership is at its corporate headquarters in New Jersey, and that its core executive and administrative functions are primarily carried out there. The District Court concluded that it lacked diversity jurisdiction because Hertz was a California citizen under Ninth Circuit precedent, which asks, inter alia, whether the amount of the corporation's business activity is "significantly larger" or "substantially predominates" in one State. Finding that California was Hertz's "principal place of business" under that test because a plurality of the relevant business activity occurred there, the District Court remanded the case to state court. The Ninth Circuit affirmed. Held: 1. Respondents' argument that this Court lacks jurisdiction under §1453(c)--which expressly permits appeals of remand orders such as the District Court's only to "court[s] of appeals," not to the Supreme Court, and provides that if "a final judgment on the appeal" in a court of appeals "is not issued before the end" of 60 days (with a possible 10-day extension), "the appeal shall be denied"--makes far too much of too little. The Court normally does not read statutory silence as implicitly modifying or limiting its jurisdiction that another statute specifically grants. E.g., Felker v. Turpin, 518 U. S. 651, 660-661. Here, replicating similar, older statutes, §1254 specifically gives the Court jurisdiction to "revie[w] ... [b]y writ of certiorari" cases that are "in the courts of appeals" when it grants the writ. The Court thus interprets §1453(c)'s "60-day" requirement as simply requiring a court of appeals to reach a decision within a specified time — not to deprive this Court of subsequent jurisdiction to review the case. See, e.g., Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464, 466-467. Pp. 4-5. 2. The phrase "principal place of business" in §1332(c)(1) refers to the place where a corporation's high level officers direct, control, and coordinate the corporation's activities, i.e., its "nerve center," which will typically be found at its corporate headquarters. Pp. 5-19. (a) A brief review of the legislative history of diversity jurisdiction demonstrates that Congress added §1332(c)(1)'s "principal place of business" language to the traditional state-of-incorporation test in order to prevent corporations from manipulating federal-court jurisdiction as well as to reduce the number of diversity cases. Pp. 5-10. (b) However, the phrase "principal place of business" has proved more difficult to apply than its originators likely expected. After Congress' amendment, courts were uncertain as to where to look to determine a corporation's "principal place of business" for diversity purposes. If a corporation's headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The "principal place of business" was in that State. But if those corporate headquarters, including executive offices, were in one State, while the corporation's plants or other centers of business activity were located in other States, the answer was less obvious. Under these circumstances, for corporations with "far-flung" business activities, numerous Circuits have looked to a corporation's "nerve center," from which the corporation radiates out to its constituent parts and from which its officers direct, control, and coordinate the corporation's activities. However, this test did not go far enough, for it did not answer what courts should do when a corporation's operations are not far-flung but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation's actual business activities are located, adopting divergent and increasingly complex tests to interpret the statute. Pp. 10-13. (c) In an effort to find a single, more uniform interpretation of the statutory phrase, this Court returns to the "nerve center" approach: "[P]rincipal place of business" is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities. In practice it should normally be the place where the corporation maintains its headquarters — provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings. Pp. 13-19. (i) Three sets of considerations, taken together, convince the Court that the "nerve center" approach, while imperfect, is superior to other possibilities. First, §1332(c)(1)'s language supports the approach. The statute's word "place" is singular, not plural. Its word "principal" requires that the main, prominent, or most important place be chosen. Cf., e.g., Commissioner v. Soliman, 506 U. S. 168, 174. And the fact that the word "place" follows the words "State where" means that the "place" is a place within a State, not the State itself. A corporation's "nerve center," usually its main headquarters, is a single place. The public often considers it the corporation's main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are significantly larger than in the next-ranking State. Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby, 497 U. S. 358, 375. A "nerve center" approach, which ordinarily equates that "center" with a corporation's headquarters, is simple to apply comparatively speaking. By contrast, a corporation's general business activities more often lack a single principal place where they take place. Third, the statute's legislative history suggests that the words "principal place of business" should be interpreted to be no more complex than an earlier, numerical test that was criticized as too complex and impractical to apply. A "nerve center" test offers such a possibility. A general business activities test does not. Pp. 14-17. (ii) While there may be no perfect test that satisfies all administrative and purposive criteria, and there will be hard cases under the "nerve center" test adopted today, this test is relatively easier to apply and does not require courts to weigh corporate functions, assets or revenues different in kind, one from the other. And though this test may produce results that seem to cut against the basic rationale of diversity jurisdiction, accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system. Pp. 17-18. (iii) If the record reveals attempts at jurisdictional manipulation — for example, that the alleged "nerve center" is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat — the courts should instead take as the "nerve center" the place of actual direction, control, and coordination, in the absence of such manipulation. Pp. 18-19. (d) Although petitioner's unchallenged declaration suggests that Hertz's "nerve center" and its corporate headquarters are one and the same, and that they are located in New Jersey, not in California, respondents should have a fair opportunity on remand to litigate their case in light of today's holding. P. 19. 297 Fed. Appx. 690, vacated and remanded. Breyer, J., delivered the opinion for a unanimous Court.THE HERTZ CORPORATION, PETITIONER v.MELINDA FRIEND et al.on writ of certiorari to the united states court of appeals for the ninth circuit[February 23, 2010] Justice Breyer delivered the opinion of the Court. The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. §1332(c)(1) (emphasis added). We seek here to resolve different interpretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase "principal place of business" refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's "nerve center." See, e.g., Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (SDNY 1959) (Weinfeld, J.). We believe that the "nerve center" will typically be found at a corporation's headquarters.I In September 2007, respondents Melinda Friend and John Nhieu, two California citizens, sued petitioner, the Hertz Corporation, in a California state court. They sought damages for what they claimed were violations of California's wage and hour laws. App. to Pet. for Cert. 20a. And they requested relief on behalf of a potential class composed of California citizens who had allegedly suffered similar harms. Hertz filed a notice seeking removal to a federal court. 28 U. S. C. §§1332(d)(2), 1441(a). Hertz claimed that the plaintiffs and the defendant were citizens of different States. §§1332(a)(1), (c)(1). Hence, the federal court possessed diversity-of-citizenship jurisdiction. Friend and Nhieu, however, claimed that the Hertz Corporation was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking. To support its position, Hertz submitted a declaration by an employee relations manager that sought to show that Hertz's "principal place of business" was in New Jersey, not in California. The declaration stated, among other things, that Hertz operated facilities in 44 States; and that California — which had about 12% of the Nation's population, Pet. for Cert. 8 — accounted for 273 of Hertz's 1,606 car rental locations; about 2,300 of its 11,230 full-time employees; about $811 million of its $4.371 billion in annual revenue; and about 3.8 million of its approximately 21 million annual transactions, i.e., rentals. The declaration also stated that the "leadership of Hertz and its domestic subsidiaries" is located at Hertz's "corporate headquarters" in Park Ridge, New Jersey; that its "core executive and administrative functions ... are carried out" there and "to a lesser extent" in Oklahoma City, Oklahoma; and that its "major administrative operations ... are found" at those two locations. App. to Pet. for Cert. 26a-30a. The District Court of the Northern District of California accepted Hertz's statement of the facts as undisputed. But it concluded that, given those facts, Hertz was a citizen of California. In reaching this conclusion, the court applied Ninth Circuit precedent, which instructs courts to identify a corporation's "principal place of business" by first determining the amount of a corporation's business activity State by State. If the amount of activity is "significantly larger" or "substantially predominates" in one State, then that State is the corporation's "principal place of business." If there is no such State, then the "principal place of business" is the corporation's " 'nerve center,' " i.e., the place where " 'the majority of its executive and administrative functions are performed.' " Friend v. Hertz, No. C-07-5222 MMC (ND Cal., Jan. 15, 2008), p. 3 (hereinafter Order); Tosco Corp. v. Communities for a Better Environment, 236 F. 3d 495, 500-502 (CA9 2001) (per curiam). Applying this test, the District Court found that the "plurality of each of the relevant business activities" was in California, and that "the differential between the amount of those activities" in California and the amount in "the next closest state" was "significant." Order 4. Hence, Hertz's "principal place of business" was California, and diversity jurisdiction was thus lacking. The District Court consequently remanded the case to the state courts. Hertz appealed the District Court's remand order. 28 U. S. C. §1453(c). The Ninth Circuit affirmed in a brief memorandum opinion. 297 Fed. Appx. 690 (2008). Hertz filed a petition for certiorari. And, in light of differences among the Circuits in the application of the test for corporate citizenship, we granted the writ. Compare Tosco Corp., supra, at 500-502, and Capitol Indemnity Corp. v. Russellville Steel Co., 367 F. 3d 831, 836 (CA8 2004) (applying "total activity" test and looking at "all corporate activities"), with Wisconsin Knife Works, supra, at 1282 (applying "nerve center" test).II At the outset, we consider a jurisdictional objection. Respondents point out that the statute permitting Hertz to appeal the District Court's remand order to the Court of Appeals, 28 U. S. C. §1453(c), constitutes an exception to a more general jurisdictional rule that remand orders are "not reviewable on appeal." §1447(d). They add that the language of §1453(c) refers only to "court[s] of appeals," not to the Supreme Court. The statute also says that if "a final judgment on the appeal" in a court of appeals "is not issued before the end" of 60 days (with a possible 10-day extension), "the appeal shall be denied." And respondents draw from these statutory circumstances the conclusion that Congress intended to permit review of a remand order only by a court of appeals, not by the Supreme Court (at least not if, as here, this Court's grant of certiorari comes after §1453(c)'s time period has elapsed). This argument, however, makes far too much of too little. We normally do not read statutory silence as implicitly modifying or limiting Supreme Court jurisdiction that another statute specifically grants. Felker v. Turpin, 518 U. S. 651, 660-661 (1996); Ex parte Yerger, 8 Wall. 85, 104-105 (1869). Here, another, pre-existing federal statute gives this Court jurisdiction to "revie[w] ... [b]y writ of certiorari" cases that, like this case, are "in the courts of appeals" when we grant the writ. 28 U. S. C. §1254. This statutory jurisdictional grant replicates similar grants that yet older statutes provided. See, e.g., §1254, 62 Stat. 928; §1, 43 Stat. 938-939 (amending §240, 36 Stat. 1157); §240, 36 Stat. 1157; Evarts Act, §6, 26 Stat. 828. This history provides particularly strong reasons not to read §1453(c)'s silence or ambiguous language as modifying or limiting our pre-existing jurisdiction. We thus interpret §1453(c)'s "60-day" requirement as simply requiring a court of appeals to reach a decision within a specified time — not to deprive this Court of subsequent jurisdiction to review the case. See Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464, 466-467 (1947); Gay v. Ruff, 292 U. S. 25, 28-31 (1934).III We begin our "principal place of business" discussion with a brief review of relevant history. The Constitution provides that the "judicial Power shall extend" to "Controversies ... between Citizens of different States." Art. III, §2. This language, however, does not automatically confer diversity jurisdiction upon the federal courts. Rather, it authorizes Congress to do so and, in doing so, to determine the scope of the federal courts' jurisdiction within constitutional limits. Kline v. Burke Constr. Co., 260 U. S. 226, 233-234 (1922); Mayor v. Cooper, 6 Wall. 247, 252 (1868). Congress first authorized federal courts to exercise diversity jurisdiction in 1789 when, in the First Judiciary Act, Congress granted federal courts authority to hear suits "between a citizen of the State where the suit is brought, and a citizen of another State." §11, 1 Stat. 78. The statute said nothing about corporations. In 1809, Chief Justice Marshall, writing for a unanimous Court, described a corporation as an "invisible, intangible, and artificial being" which was "certainly not a citizen." Bank of United States v. Deveaux, 5 Cranch 61, 86 (1809). But the Court held that a corporation could invoke the federal courts' diversity jurisdiction based on a pleading that the corporation's shareholders were all citizens of a different State from the defendants, as "the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name." Id., at 91-92. In Louisville, C. & C. R. Co. v. Letson, 2 How. 497 (1844), the Court modified this initial approach. It held that a corporation was to be deemed an artificial person of the State by which it had been created, and its citizenship for jurisdictional purposes determined accordingly. Id., at 558-559. Ten years later, the Court in Marshall v. Baltimore & Ohio R. Co., 16 How. 314 (1854), held that the reason a corporation was a citizen of its State of incorporation was that, for the limited purpose of determining corporate citizenship, courts could conclusively (and artificially) presume that a corporation's shareholders were citizens of the State of incorporation. Id., at 327-328. And it reaffirmed Letson. 16 How., at 325-326. Whatever the rationale, the practical upshot was that, for diversity purposes, the federal courts considered a corporation to be a citizen of the State of its incorporation. 13F C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3623, pp. 1-7 (3d ed. 2009) (hereinafter Wright & Miller). In 1928 this Court made clear that the "state of incorporation" rule was virtually absolute. It held that a corporation closely identified with State A could proceed in a federal court located in that State as long as the corporation had filed its incorporation papers in State B, perhaps a State where the corporation did no business at all. See Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, 522-525 (refusing to question corporation's reincorporation motives and finding diversity jurisdiction). Subsequently, many in Congress and those who testified before it pointed out that this interpretation was at odds with diversity jurisdiction's basic rationale, namely, opening the federal courts' doors to those who might otherwise suffer from local prejudice against out-of-state parties. See, e.g., S. Rep. No. 530, 72d Cong., 1st Sess., 2, 4-7 (1932). Through its choice of the State of incorporation, a corporation could manipulate federal-court jurisdiction, for example, opening the federal courts' doors in a State where it conducted nearly all its business by filing incorporation papers elsewhere. Id., at 4 ("Since the Supreme Court has decided that a corporation is a citizen ... it has become a common practice for corporations to be incorporated in one State while they do business in another. And there is no doubt but that it often occurs simply for the purpose of being able to have the advantage of choosing between two tribunals in case of litigation"). See also Hearings on S. 937 et al. before a Subcommittee of the Senate Committee on the Judiciary, 72d Cong., 1st Sess., 4-5 (1932) (Letter from Sen. George W. Norris to Attorney General William D. Mitchell (May 24, 1930)) (citing a "common practice for individuals to incorporate in a foreign State simply for the purpose of taking litigation which may arise into the Federal courts"). Although various legislative proposals to curtail the corporate use of diversity jurisdiction were made, see, e.g., S. 937, S. 939, H. R. 11508, 72d Cong., 1st Sess. (1932), none of these proposals were enacted into law. At the same time as federal dockets increased in size, many judges began to believe those dockets contained too many diversity cases. A committee of the Judicial Conference of the United States studied the matter. See Reports of the Proceedings of the Regular Annual Meeting and Special Meeting (Sept. 24-26 & Mar. 19-20, 1951), in H. R. Doc. No. 365, 82d Cong., 2d Sess., pp. 26-27 (1952). And on March 12, 1951, that committee, the Committee on Jurisdiction and Venue, issued a report (hereinafter Mar. Committee Rept.). Among its observations, the committee found a general need "to prevent frauds and abuses" with respect to jurisdiction. Id., at 14. The committee recommended against eliminating diversity cases altogether. Id., at 28. Instead it recommended, along with other proposals, a statutory amendment that would make a corporation a citizen both of the State of its incorporation and any State from which it received more than half of its gross income. Id., at 14-15 (requiring corporation to show that "less than fifty per cent of its gross income was derived from business transacted within the state where the Federal court is held"). If, for example, a citizen of California sued (under state law in state court) a corporation that received half or more of its gross income from California, that corporation would not be able to remove the case to federal court, even if Delaware was its State of incorporation. During the spring and summer of 1951 committee members circulated their report and attended circuit conferences at which federal judges discussed the report's recommendations. Reflecting those criticisms, the committee filed a new report in September, in which it revised its corporate citizenship recommendation. It now proposed that " 'a corporation shall be deemed a citizen of the state of its original creation ... [and] shall also be deemed a citizen of a state where it has its principal place of business.' " Judicial Conference of the United States, Report of the Committee on Jurisdiction and Venue 4 (Sept. 24, 1951) (hereinafter Sept. Committee Rept.)--the source of the present-day statutory language. See Hearings on H. R. 2516 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 1st Sess., 9 (1957) (hereinafter House Hearings). The committee wrote that this new language would provide a "simpler and more practical formula" than the "gross income" test. Sept. Committee Rept. 2. It added that the language "ha[d] a precedent in the jurisdictional provisions of the Bankruptcy Act." Id., at 2-3. In mid-1957 the committee presented its reports to the House of Representatives Committee on the Judiciary. House Hearings 9-27; see also H. Rep. No. 1706, 85th Cong., 2d Sess., 27-28 (1958) (hereinafter H. R. Rep. 1706) (reprinting Mar. and Sept. Committee Repts.); S. Rep. No. 1830, 85th Cong., 2d Sess., 15-31 (1958) (hereinafter S. Rep. 1830) (same). Judge Albert Maris, representing Judge John Parker (who had chaired the Judicial Conference Committee), discussed various proposals that the Judicial Conference had made to restrict the scope of diversity jurisdiction. In respect to the "principal place of business" proposal, he said that the relevant language "ha[d] been defined in the Bankruptcy Act." House Hearings 37. He added:"All of those problems have arisen in bankruptcy cases, and as I recall the cases — and I wouldn't want to be bound by this statement because I haven't them before me — I think the courts have generally taken the view that where a corporation's interests are rather widespread, the principal place of business is an actual rather than a theoretical or legal one. It is the actual place where its business operations are coordinated, directed, and carried out, which would ordinarily be the place where its officers carry on its day-to-day business, where its accounts are kept, where its payments are made, and not necessarily a State in which it may have a plant, if it is a big corporation, or something of that sort. "But that has been pretty well worked out in the bankruptcy cases, and that law would all be available, you see, to be applied here without having to go over it again from the beginning." Ibid.The House Committee reprinted the Judicial Conference Committee Reports along with other reports and relevant testimony and circulated it to the general public "for the purpose of inviting further suggestions and comments." Id., at III. Subsequently, in 1958, Congress both codified the courts' traditional place of incorporation test and also enacted into law a slightly modified version of the Conference Committee's proposed "principal place of business" language. A corporation was to "be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." §2, 72 Stat. 415.IV The phrase "principal place of business" has proved more difficult to apply than its originators likely expected. Decisions under the Bankruptcy Act did not provide the firm guidance for which Judge Maris had hoped because courts interpreting bankruptcy law did not agree about how to determine a corporation's "principal place of business." Compare Burdick v. Dillon, 144 F. 737, 738 (CA1 1906) (holding that a corporation's "principal office, rather than a factory, mill, or mine ... constitutes the 'principal place of business' "), with Continental Coal Corp. v. Roszelle Bros., 242 F. 243, 247 (CA6 1917) (identifying the "principal place of business" as the location of mining activities, rather than the "principal office"); see also Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan. L. Rev. 213, 223 (1959) ("The cases under the Bankruptcy Act provide no rigid legal formula for the determination of the principal place of business"). After Congress' amendment, courts were similarly uncertain as to where to look to determine a corporation's "principal place of business" for diversity purposes. If a corporation's headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The "principal place of business" was located in that State. See, e.g., Long v. Silver, 248 F. 3d 309, 314-315 (CA4 2001); Pinnacle Consultants, Ltd. v. Leucadia Nat. Corp., 101 F. 3d 900, 906-907 (CA2 1996). But suppose those corporate headquarters, including executive offices, are in one State, while the corporation's plants or other centers of business activity are located in other States? In 1959 a distinguished federal district judge, Edward Weinfeld, relied on the Second Circuit's interpretation of the Bankruptcy Act to answer this question in part:"Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an 'office from which its business was directed and controlled'--the place where 'all of its business was under the supreme direction and control of its officers.' " Scot Typewriter Co., 170 F. Supp., at 865.Numerous Circuits have since followed this rule, applying the "nerve center" test for corporations with "far-flung" business activities. See, e.g., Topp v. Compair Inc., 814 F. 2d 830, 834 (CA1 1987); see also 15 J. Moore et al., Moore's Federal Practice §102.54[2], p. 102-112.1 (3d ed. 2009) (hereinafter Moore's). Scot's analysis, however, did not go far enough. For it did not answer what courts should do when the operations of the corporation are not "far-flung" but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation's actual business activities are located. See, e.g., Diaz-Rodriguez v. Pep Boys Corp., 410 F. 3d 56, 60-61 (CA1 2005); R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F. 2d 651, 656-657 (CA2 1979); see also 15 Moore's §102.54, at 102-112.1. Perhaps because corporations come in many different forms, involve many different kinds of business activities, and locate offices and plants for different reasons in different ways in different regions, a general "business activities" approach has proved unusually difficult to apply. Courts must decide which factors are more important than others: for example, plant location, sales or servicing centers; transactions, payrolls, or revenue generation. See, e.g., R. G. Barry Corp., supra, at 656-657 (place of sales and advertisement, office, and full-time employees); Diaz-Rodriguez, supra, at 61-62 (place of stores and inventory, employees, income, and sales). The number of factors grew as courts explicitly combined aspects of the "nerve center" and "business activity" tests to look to a corporation's "total activities," sometimes to try to determine what treatises have described as the corporation's "center of gravity." See, e.g., Gafford v. General Elec. Co., 997 F. 2d 150, 162-163 (CA6 1993); Amoco Rocmount Co. v. Anschutz Corp., 7 F. 3d 909, 915 (CA10 1993); 13F Wright & Miller §3625, at 100. A major treatise confirms this growing complexity, listing Circuit by Circuit, cases that highlight different factors or emphasize similar factors differently, and reporting that the "federal courts of appeals have employed various tests"--tests which "tend to overlap" and which are sometimes described in "language" that "is imprecise." 15 Moore's §102.54[2], at 102-112. See also id., §§102.54[2], [13], at 102-112 to 102-122 (describing, in 14 pages, major tests as looking to the "nerve center," "locus of operations," or "center of corporate activities"). Not surprisingly, different circuits (and sometimes different courts within a single circuit) have applied these highly general multifactor tests in different ways. Id., §§102.54[3]-[7], [11]-[13] (noting that the First Circuit "has never explained a basis for choosing between 'the center of corporate activity' test and the 'locus of operations' test"; the Second Circuit uses a "two-part test" similar to that of the Fifth, Ninth, and Eleventh Circuits involving an initial determination as to whether "a corporation's activities are centralized or decentralized" followed by an application of either the "place of operations" or "nerve center" test; the Third Circuit applies the "center of corporate activities" test searching for the "headquarters of a corporation's day-to-day activity"; the Fourth Circuit has "endorsed neither [the 'nerve center' or 'place of operations'] test to the exclusion of the other"; the Tenth Circuit directs consideration of the "total activity of the company considered as a whole"). See also 13F Wright & Miller §3625 (describing, in 73 pages, the "nerve center," "corporate activities," and "total activity" tests as part of an effort to locate the corporation's "center of gravity," while specifying different ways in which different circuits apply these or other factors). This complexity may reflect an unmediated judicial effort to apply the statutory phrase "principal place of business" in light of the general purpose of diversity jurisdiction, i.e., an effort to find the State where a corporation is least likely to suffer out-of-state prejudice when it is sued in a local court, Pease v. Peck, 18 How. 595, 599 (1856). But, if so, that task seems doomed to failure. After all, the relevant purposive concern — prejudice against an out-of-state party — will often depend upon factors that courts cannot easily measure, for example, a corporation's image, its history, and its advertising, while the factors that courts can more easily measure, for example, its office or plant location, its sales, its employment, or the nature of the goods or services it supplies, will sometimes bear no more than a distant relation to the likelihood of prejudice. At the same time, this approach is at war with administrative simplicity. And it has failed to achieve a nationally uniform interpretation of federal law, an unfortunate consequence in a federal legal system.VA In an effort to find a single, more uniform interpretation of the statutory phrase, we have reviewed the Courts of Appeals' divergent and increasingly complex interpretations. Having done so, we now return to, and expand, Judge Weinfeld's approach, as applied in the Seventh Circuit. See, e.g., Scot Typewriter Co., 170 F. Supp., at 865; Wisconsin Knife Works, 781 F. 2d, at 1282. We conclude that "principal place of business" is best read as referring to the place where a corporation's officers direct, control, and coordinate the corporation's activities. It is the place that Courts of Appeals have called the corporation's "nerve center." And in practice it should normally be the place where the corporation maintains its headquarters — provided that the headquarters is the actual center of direction, control, and coordination, i.e., the "nerve center," and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion). Three sets of considerations, taken together, convince us that this approach, while imperfect, is superior to other possibilities. First, the statute's language supports the approach. The statute's text deems a corporation a citizen of the "State where it has its principal place of business. " 28 U. S. C. §1332(c)(1). The word "place" is in the singular, not the plural. The word "principal" re-quires us to pick out the "main, prominent" or "leading" place. 12 Oxford English Dictionary 495 (2d ed. 1989) (def. (A)(I)(2)). Cf. Commissioner v. Soliman, 506 U. S. 168, 174 (1993) (interpreting "principal place of business" for tax purposes to require an assessment of "whether any one business location is the 'most important, consequential, or influential' one"). And the fact that the word "place" follows the words "State where" means that the "place" is a place within a State. It is not the State itself. A corporation's "nerve center," usually its main headquarters, is a single place. The public often (though not always) considers it the corporation's main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are "significantly larger" than in the next-ranking State. 297 Fed. Appx. 690. This approach invites greater litigation and can lead to strange results, as the Ninth Circuit has since recognized. Namely, if a "corporation may be deemed a citizen of California on th[e] basis" of "activities [that] roughly reflect California's larger population ... nearly every national retailer — no matter how far flung its operations — will be deemed a citizen of California for diversity purposes." Davis v. HSBC Bank Nev., N. A., 557 F. 3d 1026, 1029-1030 (2009). But why award or decline diversity jurisdiction on the basis of a State's population, whether measured directly, indirectly (say proportionately), or with modifications? Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby, 497 U. S. 358, 375 (1990) (Scalia, J., concurring in judgment) (eschewing "the sort of vague boundary that is to be avoided in the area of subject-matter jurisdiction wherever possible"). Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims. Cf. Navarro Savings Assn. v. Lee, 446 U. S. 458, 464, n. 13 (1980). Complex tests produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim's legal and factual merits. Judicial resources too are at stake. Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it. Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 583 (1999)). So courts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case. Arbaugh, supra, at 514. Simple jurisdictional rules also promote greater predictability. Predictability is valuable to corporations making business and investment decisions. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 621 (1983) (recognizing the "need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation"). Predictability also benefits plaintiffs deciding whether to file suit in a state or federal court. A "nerve center" approach, which ordinarily equates that "center" with a corporation's headquarters, is simple to apply comparatively speaking. The metaphor of a corporate "brain," while not precise, suggests a single location. By contrast, a corporation's general business activities more often lack a single principal place where they take place. That is to say, the corporation may have several plants, many sales locations, and employees located in many different places. If so, it will not be as easy to determine which of these different business locales is the "principal" or most important "place." Third, the statute's legislative history, for those who accept it, offers a simplicity-related interpretive benchmark. The Judicial Conference provided an initial version of its proposal that suggested a numerical test. A corporation would be deemed a citizen of the State that accounted for more than half of its gross income. Mar. Committee Rept. 14-15; see supra, at 8. The Conference changed its mind in light of criticism that such a test would prove too complex and impractical to apply. Sept. Committee Rept. 2; see also H. Rep. 1706, at 28; S. Rep. 1830, at 31. That history suggests that the words "principal place of business" should be interpreted to be no more complex than the initial "half of gross income" test. A "nerve center" test offers such a possibility. A general business activities test does not.B We recognize that there may be no perfect test that satisfies all administrative and purposive criteria. We recognize as well that, under the "nerve center" test we adopt today, there will be hard cases. For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet. That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination. Courts do not have to try to weigh corporate functions, assets, or revenues different in kind, one from the other. Our approach provides a sensible test that is relatively easier to apply, not a test that will, in all instances, automatically generate a result. We also recognize that the use of a "nerve center" test may in some cases produce results that seem to cut against the basic rationale for 28 U. S. C. §1332, see supra, at 6. For example, if the bulk of a company's business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the "principal place of business" is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York — yet the corporation will still be entitled to remove a New Jersey state case to federal court. And note too that the same corporation would be unable to remove a New York state case to federal court, despite the New York public's presumed prejudice against the corporation. We understand that such seeming anomalies will arise. However, in view of the necessity of having a clearer rule, we must accept them. Accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system. The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 377 (1994); McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 189 (1936); see also 13E Wright & Miller §3602.1, at 119. When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof. McNutt, supra, at 189; 15 Moore's §102.14, at 102-32 to 102-32.1. And when faced with such a challenge, we reject suggestions such as, for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commission's Form 10-K listing a corporation's "principal executive offices" would, without more, be sufficient proof to establish a corporation's "nerve center." See, e.g., SEC Form 10-K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court's case file). Cf. Dimmitt & Owens Financial, Inc. v. United States, 787 F. 2d 1186, 1190-1192 (CA7 1986) (distinguishing "principle executive office" in the tax lien context, see 26 U. S. C. §6323(f)(2), from "principal place of business" under 28 U. S. C. §1332(c)). Such possibilities would readily permit jurisdictional manipulation, thereby subverting a major reason for the insertion of the "principal place of business" language in the diversity statute. Indeed, if the record reveals attempts at manipulation — for example, that the alleged "nerve center" is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat — the courts should instead take as the "nerve center" the place of actual direction, control, and coordination, in the absence of such manipulation.VI Petitioner's unchallenged declaration suggests that Hertz's center of direction, control, and coordination, its "nerve center," and its corporate headquarters are one and the same, and they are located in New Jersey, not in California. Because respondents should have a fair opportunity to litigate their case in light of our holding, however, we vacate the Ninth Circuit's judgment and remand the case for further proceedings consistent with this opinion.It is so ordered. |
1 | After administrative proceedings by an Army Board of Inquiry and a Board of Review under 10 U.S.C. (Supp. II) 3792 and 3793 had resulted in a recommendation that the Secretary of the Army remove appellant, a commissioned officer in the Regular Army, from the active list and award him a general discharge, but before the Secretary had taken any action under 3794, appellant sued in a Federal District Court to enjoin the Secretary from determining whether he should be removed. He claimed that the administrative proceedings were unconstitutional because they deprived him of his office and retirement benefits without due process of law. The District Court sustained the constitutionality of the statute and the administrative proceedings and dismissed the complaint. Held: The judgment is vacated with directions to dismiss the complaint as premature. Application for a stay is denied. Pp. 41-42. Reported below: 200 F. Supp. 766.Frederick Bernays Wiener for appellant.Solicitor General Cox, Assistant Attorney General Orrick and John G. Laughlin, Jr. for appellees.PER CURIAM.The judgment of the District Court is vacated and the cause is remanded with directions to dismiss the complaint. The action is premature. The appellant will not be removed from the active list of the Regular Army unless the Secretary of the Army exercise the discretionary authority to remove him conferred by 10 U.S.C. 3794. The Secretary has not stated that he will so exercise his discretion as to remove appellant. If the Secretary does not remove the appellant it will be unnecessary to pass on the constitutional objections which have been urged. If appellant is removed, the Court is satisfied that adequate procedures for seeking redress will be open to him. Compare Aircraft & Diesel Corp. v. Hirsch, . Accordingly, the application for a stay is denied.THE CHIEF JUSTICE is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits and would grant the application for a stay.MR. JUSTICE FRANKFURTER took no part in the decision of this case.MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting.Appellant is a Major in the Regular Army and has the temporary rank of Lieutenant Colonel. He served in World War II and received the Bronze Star Medal. He at present has had over 19 years of active federal service and will be eligible for retirement in November 1962. But for the present charge against him his military record reflects exemplary conduct and high efficiency ratings.These years of faithful service have now gone largely for naught under a decision of an Army Board of Review recommending that he be given a general discharge. Whatever the merits may be, I believe that the procedure used at his hearing violated our standards of fairness.Under the statute here in question, 10 U.S.C. 3792 (c), an officer faced with a charge carries the burden of proof that "he should be retained on the active list."The District Court held that there was no constitutional objection to placing this burden of proof on the officer. 200 F. Supp. 766, 775. It reasoned that since the President could dismiss an officer summarily,* Congress could place on the one removed "the onus of convincing his superiors that he should not be eliminated." Ibid. Dismissal is one thing; dismissal with stigma, as here, is quite another. Dismissal with stigma is a severe penalty. In comparable situations, the Government has been required to carry the burden of proof. Kwong Hai Chew v. RogersApp. D.C. 228, 257 F.2d 606; Wood v. Hoy, 266 F.2d 825, 830. Unless this burden is meticulously maintained, discharge for race, for religion, for political opinion, or for beliefs may masquerade under unproved charges. This right, like the right to be heard, is basic to our society. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, (concurring opinion); Beilan v. Board of Education, (dissenting opinion); Wieman v. Updegraff, .There is a second reason why we should remand this case for a new hearing. The one witness whose testimony was critical to the case was not called. Confrontation and cross-examination are, as I understand the law, vital when one's employment rights are involved (see Greene v. McElroy, ) - the factor that distinguishes Cafeteria Workers v. McElroy, , where the only question was access to a military base. Perhaps the missing accuser - whose activities were described in uncomplimentary terms in Rittenour v. District of Columbia, 163 A. 2d 558 - would have made such an unbecoming witness that the Board would have dismissed the charges. Faceless informers are often effective if they need not take the stand. A fair hearing requires the production of the accuser so that cross-examination can test his character and reliability. That question is very close to the one involved in No. 1123, Misc., Williams v. Zuckert, in which we granted certiorari only the other day. . This case should be heard with that one.I think the present case is ripe for review. Once the Secretary of the Army approves the decision now challenged, appellant will be severed from military service with less than an honorable discharge. If a wrong was committed, I assume that he could recover a judgment that restores any loss of salary or pension. More than dollars, however, are involved: at stake is a man's professional standing, his character, and his claim to an honorable discharge. Where the Army departs from the statutory standard which prescribes the basis on which discharges will be issued, the federal courts can intervene. See Harmon v. Brucker, . Though the Court's opinion may be read as indicating that a collateral proceeding to set aside one discharge and to direct that an honorable one be granted may lie, we should nonetheless halt this irregular procedure in limine. For we are dealing here with the charge of "conduct unbecoming an officer," a charge that carries a heavy stigma. As Winthrop said: "Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." Military Law and Precedents (2d ed. 1896) 1104.If declaratory relief will be accorded, as it certainly could be (Bland v. ConnallyApp. D.C. 375, 293 F.2d 852), this action for an injunction is timely to prevent an injustice. As recently stated: "We think it must be conceded that any discharge characterized as less than honorable will result in serious injury. It not only means the loss of numerous benefits in both the federal and state systems, but it also results in an unmistakable social stigma which greatly limits the opportunities for both public and private civilian employment." App. D.C. 375, 381, 293 F.2d 852, 858.I would reverse the judgment below and direct that appellant be accorded a hearing that comports with the requirements of due process.[Footnote *] Which of course, is a mistaken premise. See Wiener v. United States, ; Blake v. United States, . |
0 | Florida has a rule of criminal procedure requiring a defendant who intends to rely on an alibi to disclose to the prosecution the names of his alibi witnesses; the prosecution must in turn disclose to the defense the names of witnesses to rebut the alibi. Failure to comply can result in exclusion of alibi evidence at trial (except for the defendant's own testimony) or, in the case of the State, exclusion of the rebuttal evidence. Petitioner, who was charged with robbery, complied with the rule after failing to be relieved of its requirements. His pretrial motion to impanel a 12-man jury, instead of the six-man jury Florida law provides for noncapital cases, was denied. At trial the State used a deposition of petitioner's alibi witness to impeach the witness. Petitioner was convicted and the appellate court affirmed. Petitioner claims that his Fifth Amendment rights were violated, on the ground that the notice-of-alibi rule required him to furnish the State with information useful in convicting him, and that his Sixth Amendment right was violated on the ground that the six-man jury deprived him of the right to "trial by jury" under the Sixth Amendment. Held: 1. Florida's notice-of-alibi rule does not violate the Fifth Amendment as made applicable to the States by the Fourteenth Amendment. Pp. 80-86. (a) This discovery rule is designed to enhance the search for truth in criminal trials by giving both the accused and the State opportunity to investigate certain facts crucial to the issue of guilt or innocence and comports with requirements for due process and a fair trial. Pp. 81-82. (b) The rule at most accelerated the timing of petitioner's disclosure of an alibi defense and thus did not violate the privilege against compelled self-incrimination. Pp. 82-86. 2. The constitutional guarantee of a trial by jury does not require that jury membership be fixed at 12, a historically accidental figure. Although accepted at common law, the Framers did not explicitly intend to forever codify as a constitutional requirement a feature not essential to the Sixth Amendment's purpose of interposing between the defendant and the prosecution the commonsense judgment of his peers. Pp. 86-103. 224 So.2d 406, affirmed.Richard Kanner argued the cause and filed briefs for petitioner.Jesse J. McCrary, Jr., Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief were Earl Faircloth, Attorney General, and Ronald W. Sabo, Assistant Attorney General.Jack Greenberg and Michael Meltsner filed a brief for Virgil Jenkins as amicus curiae urging reversal.MR. JUSTICE WHITE delivered the opinion of the Court.Prior to his trial for robbery in the State of Florida, petitioner filed a "Motion for a Protective Order," seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure. That rule requires a defendant, on written demand of the prosecuting attorney, to give notice in advance of trial if the defendant intends to claim an alibi, and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use.1 In his motion petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule "compels the Defendant in a criminal case to be a witness against himself" in violation of his Fifth and Fourteenth Amendment rights.2 The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six-man jury provided by Florida law in all but capital cases.3 That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment.4 The District Court of Appeal affirmed, rejecting petitioner's claims that his Fifth and Sixth Amendment rights had been violated. We granted certiorari.5 .IFlorida's notice-of-alibi rule is in essence a requirement that a defendant submit to a limited form of pretrial discovery by the State whenever he intends to rely at trial on the defense of alibi. In exchange for the defendant's disclosure of the witnesses he proposes to use to establish that defense, the State in turn is required to notify the defendant of any witnesses it proposes to offer in rebuttal to that defense. Both sides are under a continuing duty promptly to disclose the names and addresses of additional witnesses bearing on the alibi as they become available. The threatened sanction for failure to comply is the exclusion at trial of the defendant's alibi evidence - except for his own testimony - or, in the case of the State, the exclusion of the State's evidence offered in rebuttal of the alibi.6 In this case, following the denial of his Motion for a Protective Order, petitioner complied with the alibi rule and gave the State the name and address of one Mary Scotty. Mrs. Scotty was summoned to the office of the State Attorney on the morning of the trial, where she gave pretrial testimony. At the trial itself, Mrs. Scotty, petitioner, and petitioner's wife all testified that the three of them had been in Mrs. Scotty's apartment during the time of the robbery. On two occasions during cross-examination of Mrs. Scotty, the prosecuting attorney confronted her with her earlier deposition in which she had given dates and times that in some respects did not correspond with the dates and times given at trial. Mrs. Scotty adhered to her trial story, insisting that she had been mistaken in her earlier testimony.7 The State also offered in rebuttal the testimony of one of the officers investigating the robbery who claimed that Mrs. Scotty had asked him for directions on the afternoon in question during the time when she claimed to have been in her apartment with petitioner and his wife.8 We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of "due process" or a "fair trial." Florida law provides for liberal discovery by the defendant against the State,9 and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927,10 are now in existence in a substantial number of States.11 The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.12 We find ample room in that system, at least as far as "due process" is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.Petitioner's major contention is that he was "compelled ... to be a witness against himself" contrary to the commands of the Fifth and Fourteenth Amendments because the notice-of-alibi rule required him to give the State the name and address of Mrs. Scotty in advance of trial and thus to furnish the State with information useful in convicting him. No pretrial statement of petitioner was introduced at trial; but armed with Mrs. Scotty's name and address and the knowledge that she was to be petitioner's alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony. Also, requiring him to reveal the elements of his defense is claimed to have interfered with his right to wait until after the State had presented its case to decide how to defend against it. We conclude, however, as has apparently every other court that has considered the issue,13 that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.14 The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which in itself may prove incriminating or which may furnish the State with leads to incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However "testimonial" or "incriminating" the alibi defense proves to be, it cannot be considered "compelled" within the meaning of the Fifth and Fourteenth Amendments.Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.15 That choice must be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.In the case before us, the notice-of-alibi rule by itself in no way affected petitioner's crucial decision to call alibi witnesses or added to the legitimate pressures leading to that course of action. At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.Petitioner concedes that absent the notice-of-alibi rule the Constitution would raise no bar to the court's granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called.16 Nor would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial.17 We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.IIIn Duncan v. Louisiana, , we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that - were they to be tried in a federal court - would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, ante, p. 66; DeStefano v. Woods, . The question in this case then is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser number - in this case six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history of the development of trial by jury in criminal cases.18 That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12.19 Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed.20 Other, less circular but more fanciful reasons for the number 12 have been given, "but they were all brought forward after the number was fixed,"21 and rest on little more than mystical or superstitious insights into the significance of "12." Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.,"22 is typical.23 In short, while sometime in the 14th century the size of the jury at common law came to be fixed generally at 12,24 that particular feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.25 The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution.This Court's earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is Thompson v. Utah, . There the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but by that time Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury "constituted, as it was at common law, of twelve persons, neither more nor less." 170 U.S., at 349. Arguably unnecessary for the result,26 this announcement was supported simply by referring to the Magna Carta,27 and by quoting passages from treatises which noted - what has already been seen - that at common law the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common law - whether incidental or essential to that institution - was necessarily included in the Constitution wherever that document referred to a "jury."28 Subsequent decisions have reaffirmed the announcement in Thompson, often in dictum29 and usually by relying - where there was any discussion of the issue at all - solely on the fact that the common-law jury consisted of 12.30 See Patton v. United States, ;31 Rassmussen v. United States, ; Maxwell v. Dow, .While "the intent of the Framers" is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. Provisions for jury trial were first placed in the Constitution in Article III's provision that "[t]he Trial of all Crimes ... shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed."32 The "very scanty history [of this provision] in the records of the Constitutional Convention"33 sheds little light either way on the intended correlation between Article III's "jury" and the features of the jury at common law.34 Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common-law right to be tried by a "jury of the vicinage."35 That concern, as well as the concern to preserve the right to jury in civil as well as criminal cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that: "The trial of all crimes ... shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites ... ."36 The Amendment passed the House in substantially this form, but after more than a week of debate in the Senate it returned to the House considerably altered.37 While records of the actual debates that occurred in the Senate are not available,38 a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate's major objections was to the "vicinage" requirement in the House version.39 A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because in its view the then-pending judiciary bill - which was debated at the same time as the Amendments - adequately preserved the common-law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. "The Senate," wrote Madison: "are ... inflexible in opposing a definition of the locality of Juries. The vicinage they contend is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, `with the accustomed requisites,' leaving the definition to be construed according to the judgment of professional men. Even this could not be obtained ... . The Senate suppose, also, that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point."40 The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment, ensuring an accused:"the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ... ." Gone were the provisions spelling out such common-law features of the jury as "unanimity," or "the accustomed requisites." And the "vicinage" requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the "vicinage" by its creation of judicial districts.41 Three significant features may be observed in this sketch of the background of the Constitution's jury trial provisions. First, even though the vicinage requirement was as much a feature of the common-law jury as was the 12-man requirement,42 the mere reference to "trial by jury" in Article III was not interpreted to include that feature. Indeed, as the subsequent debates over the Amendments indicate, disagreement arose over whether the feature should be included at all in its common-law sense, resulting in the compromise described above. Second, provisions that would have explicitly tied the "jury" concept to the "accustomed requisites" of the time were eliminated. Such action is concededly open to the explanation that the "accustomed requisites" were thought to be already included in the concept of a "jury." But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit "vicinage" requirement, the latter explanation is, if anything, the more plausible. Finally, contemporary legislative and constitutional provisions indicate that where Congress wanted to leave no doubt that it was incorporating existing common-law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary bill, signed by the President on the same day that the House and Senate finally agreed on the form of the Amendments to be submitted to the States, provided in certain cases for the narrower "vicinage" requirements that the House had wanted to include in the Amendments.43 And the Seventh Amendment, providing for jury trial in civil cases, explicitly added that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."44 We do not pretend to be able to divine precisely what the word "jury" imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12,45 and that hence, the most likely conclusion to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common-law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government. "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, supra, at 156. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 - particularly if the requirement of unanimity is retained.46 And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.It might be suggested that the 12-man jury gives a defendant a greater advantage since he has more "chances" of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal.47 What few experiments have occurred - usually in the civil area - indicate that there is no discernible difference between the results reached by the two different-sized juries.48 In short, neither currently available evidence nor theory49 suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members.Similarly, while in theory the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e. g., Carter v. Jury Commission, , the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." Duncan v. Louisiana, supra, at 182 (HARLAN, J., dissenting). To read the Sixth Amendment as forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions - reflected in the provisions of most States and in our federal system50 - are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors - a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man rather than a 12-man jury. The judgment of the Florida District Court of Appeal is Affirmed.MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT Fla. Rule Crim. Proc. 1.200: "Upon the written demand of the prosecuting attorney, specifying as particularly as is known to such prosecuting attorney, the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in his defense shall, not less than ten days before trial or such other time as the court may direct, file and serve upon such prosecuting attorney a notice in writing of his intention to claim such alibi, which notice shall contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish such alibi. Not less than five days after receipt of defendant's witness list, or such other times as the court may direct, the prosecuting attorney shall file and serve upon the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the State proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided in this rule. If a defendant fails to file and serve a copy of such notice as herein required, the court may exclude evidence offered by such defendant for the purpose of proving an alibi, except the testimony of the defendant himself. If such notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of proving an alibi if the name and address of such witness as particularly as is known to defendant or his attorney is not stated in such notice. If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant's alibi evidence. If such notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of such witness as particularly as is known to the prosecuting attorney is not stated in such notice. For good cause shown the court may waive the requirements of this rule." |
1 | The "minority business enterprise" (MBE) provision of the Public Works Employment Act of 1977 (1977 Act) requires that, absent an administrative waiver, at least 10% of federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned by minority group members, defined as United States citizens "who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Under implementing regulations and guidelines, grantees and their private prime contractors are required, to the extent feasible, in fulfilling the 10% MBE requirement, to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the Small Business Administration, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process. The administrative program, which recognizes that contracts will be awarded to bona fide MBE's even though they are not the lowest bidders if their bids reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination, provides for handling grantee applications for administrative waiver of the 10% MBE requirement on a case-by-case basis if infeasibility is demonstrated by a showing that, despite affirmative efforts, such level of participation cannot be achieved without departing from the program's objectives. The program also provides an administrative mechanism to ensure that only bona fide MBE's are encompassed by the program, and to prevent unjust participation by minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination. Petitioners, several associations of construction contractors and sub-contractors and a firm engaged in heating, ventilation, and air conditioning work, filed suit for declaratory and injunctive relief in Federal District Court, alleging that they had sustained economic injury due to enforcement of the MBE requirement and that the MBE provision on its face violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the equal protection component of the Due Process Clause of the Fifth Amendment. The District Court upheld the validity of the MBE program, and the Court of Appeals affirmed.Held: The judgment is affirmed. Pp. 456-492; 517-522. 584 F.2d 600, affirmed.MR. CHIEF JUSTICE BURGER, joined by MR. JUSTICE WHITE and MR. JUSTICE POWELL, concluded that the MBE provision of the 1977 Act, on its face, does not violate the Constitution. Pp. 456-492. (a) Viewed against the legislative and administrative background of the 1977 Act, the legislative objectives of the MBE provision and of the administrative program thereunder were to ensure - without mandating the allocation of federal funds according to inflexible percentages solely based on race or ethnicity - that, to the extent federal funds were granted under the 1977 Act, grantees who elected to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. Pp. 456-472. (b) In considering the constitutionality of the MBE provision, it first must be determined whether the objectives of the legislation are within Congress' power. Pp. 472-480. (i) The 1977 Act, as primarily an exercise of Congress' Spending Power under Art. I, 8, cl. 1, "to provide for the ... general Welfare," conditions receipt of federal moneys upon the receipt's compliance with federal statutory and administrative directives. Since the reach of the Spending Power is at least as broad as Congress' regulatory powers, if Congress, pursuant to its regulatory powers, could have achieved the objectives of the MBE program, then it may do so under the Spending Power. Pp. 473-475. (ii) Insofar as the MBE program pertains to the actions of private prime contractors, including those not responsible for any violation of antidiscrimination laws, Congress could have achieved its objectives under the Commerce Clause. The legislative history shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Pp. 475-476. (iii) Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under 5 of the Fourteenth Amendment "to enforce, by appropriate legislation" the equal protection guarantee of that Amendment. Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination, and that the prospective elimination of such barriers to minority-firm access to public contracting opportunities was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Cf., e. g., Katzenbach v. Morgan, ; Oregon v. Mitchell, . Pp. 476-478. (iv) Thus, the objectives of the MBE provision are within the scope of Congress' Spending Power. Cf. Lau v. Nichols, . Pp. 479-480. (c) Congress' use here of racial and ethnic criteria as a condition attached to a federal grant is a valid means to accomplish its constitutional objectives, and the MBE provision on its face does not violate the equal protection component of the Due Process Clause of the Fifth Amendment. Pp. 480-492. (i) In the MBE program's remedial context, there is no requirement that Congress act in a wholly "color-blind" fashion. Cf., e. g., Swann v. Charlotte-Mecklenburg Board of Education, ; McDaniel v. Barresi, ; North Carolina Board of Education v. Swann, . Pp. 482-484. (ii) The MBE program is not constitutionally defective because it may disappoint the expectations of access to a portion of government contracting opportunities of nonminority firms who may themselves be innocent of any prior discriminatory actions. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks v. Bowman Transportation Co., . Pp. 484-485. (iii) Nor is the MBE program invalid as being underinclusive in that it limits its benefit to specified minority groups rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities, and there has been no showing that Congress inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. Pp. 485-486. (iv) The contention that the MBE program, on its face, is overinclusive in that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination, is also without merit. The MBE provision, with due account for its administrative program, provides a reasonable assurance that application of racial or ethnic criteria will be narrowly limited to accomplishing Congress' remedial objectives and that misapplications of the program will be promptly and adequately remedied administratively. In particular, the administrative program provides waiver and exemption procedures to identify and eliminate from participation MBE's who are not "bona fide," or who attempt to exploit the remedial aspects of the program by charging an unreasonable price not attributable to the present effects of past discrimination. Moreover, grantees may obtain a waiver if they demonstrate that their best efforts will not achieve or have not achieved the 10% target for minority firm participation within the limitations of the program's remedial objectives. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration and subject to reassessment and re-evaluation by the Congress prior to any extension or re-enactment. Pp. 486-489. (d) In the continuing effort to achieve the goal of equality of economic opportunity, Congress has latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives, especially in programs where voluntary cooperation is induced by placing conditions on federal expenditures. When a program narrowly tailored by Congress to achieve its objectives comes under judicial review, it should be upheld if the courts are satisfied that the legislative objectives and projected administration of the program give reasonable assurance that the program will function within constitutional limitations. Pp. 490-492. MR. JUSTICE MARSHALL, joined by MR. JUSTICE BRENNAN and MR. JUSTICE BLACKMUN, concurring in the judgment, concluded that the proper inquiry for determining the constitutionality of racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination is whether the classifications serve important governmental objectives and are substantially related to achievement of those objectives, University of California Regents v. Bakke, (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., concurring in judgment in part and dissenting in part), and that, judged under this standard, the 10% minority set-aside provision of the 1977 Act is plainly constitutional, the racial classifications being substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past racial discrimination. Pp. 517-521. BURGER, C. J., announced the judgment of the Court and delivered an opinion, in which WHITE and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 495. MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 517. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 522. STEVENS, J., filed a dissenting opinion, post, p. 532.Robert G. Benisch argued the cause for petitioners Fullilove et al. With him on the briefs was Robert J. Fink. Robert J. Hickey argued the cause for petitioner General Building Contractors of New York State, Inc., the New York State Building Chapter, Associated General Contractors of America, Inc. With him on the briefs was Peter G. Kilgore.Assistant Attorney General Days argued the cause for respondents. With him on the brief for respondent Secretary of Commerce were Solicitor General McCree, Deputy Solicitor General Wallace, Brian K. Landsberg, Jessica Dunsay Silver, and Vincent F. O'Rourke, Jr. Robert Abrams, Attorney General of New York, Shirley Adelson Siegel, Solicitor General, and Arnold D. Fleischer and Barbara E. Levy, Assistant Attorneys General, filed a brief for respondent State of New York. Allen G. Schwartz, James G. Greilsheimer, L. Kevin Sheridan, and Frances M. Morris filed a brief for respondents city of New York et al.* [Footnote *] Briefs of amici curiae urging reversal were filed by Kenneth C. McGuiness, Douglas S. McDowell, and Daniel R. Levinson for the Equal Employment Advisory Council; and by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation. Briefs of amici curiae urging affirmance were filed by Julian B. Wilkins and Jewel S. Lafontant for Alpha Kappa Alpha Sorority, Inc.; by E. Richard Larson, Burt Neuborne, Frank Askin, and Robert Sedler for the American Civil Liberties Union et al.; by Ronald J. Greene for the American Savings & Loan League, Inc., et al.; by Bill Lann Lee for the Asian American Legal Defense and Education Fund, Inc.; by John B. Jones, Jr., Norman Redlich, William L. Robinson, Richard T. Seymour, Norman J. Chachkin, Laurence S. Fordham, Henry P. Monaghan, and Robert D. Goldstein for the Lawyers' Committee for Civil Rights Under Law; by Vilma S. Martinez, Morris J. Baller, and Joel G. Contreras for the Mexican American/Hispanic Contractors and Truckers Association, Inc., et al.; by Daniel T. Ingram, Jr., for the Minority Contractors Assistance Project, Inc.; by Nathaniel R. Jones, J. Francis Pohlhaus, and John A. Fillion for the National Association for the Advancement of Colored People et al.; by Jack Greenberg, James M. Nabrit III, Eric Schnapper, Vernon E. Jordan, Jr., and Robert L. Harris for the NAACP Legal Defense and Educational Fund, Inc., et al.; and by Robert T. Pickett for the National Bar Association, Inc., et al. Briefs of amici curiae were filed by Arthur Kinoy for the Affirmative Action Coordinating Center et al.; by Robert A. Helman, Justin J. Finger, Jeffrey P. Sinensky, and Richard A. Weisz for the Anti-Defamation League of B'nai B'rith; by Walter R. Echo-Hawk and Robert S. Pelcyger for the Minority Contractors Association, Inc.; and by Bernard Parks and Lenwood A. Jackson for the National Conference of Black Mayors, Inc. MR. CHIEF JUSTICE BURGER announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE WHITE and MR. JUSTICE POWELL joined.We granted certiorari to consider a facial constitutional challenge to a requirement in a congressional spending program that, absent an administrative waiver, 10% of the federal funds granted for local public works projects must be used by the state or local grantee to procure services or supplies from businesses owned and controlled by members of statutorily identified minority groups. .IIn May 1977, Congress enacted the Public Works Employment Act of 1977, Pub. L. 95-28, 91 Stat. 116, which amended the Local Public Works Capital Development and Investment Act of 1976, Pub. L. 94-369, 90 Stat. 999, 42 U.S.C. 6701 et seq. The 1977 amendments authorized an additional $4 billion appropriation for federal grants to be made by the Secretary of Commerce, acting through the Economic Development Administration (EDA), to state and local governmental entities for use in local public works projects. Among the changes made was the addition of the provision that has become the focus of this litigation. Section 103 (f) (2) of the 1977 Act, referred to as the "minority business enterprise" or "MBE" provision, requires that:1 "Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the secretary that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises. For purposes of this paragraph, the term `minority business enterprise' means a business at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." In late May 1977, the Secretary promulgated regulations governing administration of the grant program which were amended two months later.2 In August 1977, the EDA issued guidelines supplementing the statute and regulations with respect to minority business participation in local public works grants,3 and in October 1977, the EDA issued a technical bulletin promulgating detailed instructions and information to assist grantees and their contractors in meeting the 10% MBE requirement.4 On November 30, 1977, petitioners filed a complaint in the United States District Court for the Southern District of New York seeking declaratory and injunctive relief to enjoin enforcement of the MBE provision. Named as defendants were the Secretary of Commerce, as the program administrator, and the State and City of New York, as actual and potential project grantees. Petitioners are several associations of construction contractors and subcontractors, and a firm engaged in heating, ventilation, and air conditioning work. Their complaint alleged that they had sustained economic injury due to enforcement of the 10% MBE requirement and that the MBE provision on its face violated the Equal Protection Clause of the Fourteenth Amendment, the equal protection component of the Due Process Clause of the Fifth Amendment, and various statutory antidiscrimination provisions.5 After a hearing held the day the complaint was filed, the District Court denied a requested temporary restraining order and scheduled the matter for an expedited hearing on the merits. On December 19, 1977, the District Court issued a memorandum opinion upholding the validity of the MBE program and denying the injunctive relief sought. Fullilove v. Kreps, 443 F. Supp. 253 (1977).The United States Court of Appeals for the Second Circuit affirmed, 584 F.2d 600 (1978), holding that "even under the most exacting standard of review the MBE provision passes constitutional muster." Id., at 603. Considered in the context of many years of governmental efforts to remedy past racial and ethnic discrimination, the court found it "difficult to imagine" any purpose for the program other than to remedy such discrimination. Id., at 605. In its view, a number of factors contributed to the legitimacy of the MBE provision, most significant of which was the narrowed focus and limited extent of the statutory and administrative program, in size, impact, and duration, id., at 607-608; the court looked also to the holdings of other Courts of Appeals and District Courts that the MBE program was constitutional, id., at 608-609.6 It expressly rejected petitioners' contention that the 10% MBE requirement violated the equal protection guarantees of the Constitution.7 Id., at 609.IIAThe MBE provision was enacted as part of the Public Works Employment Act of 1977, which made various amendments to Title I of the Local Public Works Capital Development and Investment Act of 1976. The 1976 Act was intended as a short-term measure to alleviate the problem of national unemployment and to stimulate the national economy by assisting state and local governments to build needed public facilities.8 To accomplish these objectives, the Congress authorized the Secretary of Commerce, acting through the EDA, to make grants to state and local governments for construction, renovation, repair, or other improvement of local public works projects.9 The 1976 Act placed a number of restrictions on project eligibility designed to assure that federal moneys were targeted to accomplish the legislative purposes.10 It established criteria to determine grant priorities and to apportion federal funds among political jurisdictions.11 Those criteria directed grant funds toward areas of high unemployment.12 The statute authorized the appropriation of up to $2 billion for a period ending in September 1977;13 this appropriation was soon consumed by grants made under the program.Early in 1977, Congress began consideration of expanded appropriations and amendments to the grant program. Under administration of the 1976 appropriation, referred to as "Round I" of the local public works program, applicants seeking some $25 billion in grants had competed for the $2 billion in available funds; of nearly 25,000 applications, only some 2,000 were granted.14 The results provoked widespread concern for the fairness of the allocation process.15 Because the 1977 Act would authorize the appropriation of an additional $4 billion to fund "Round II" of the grant program,16 the congressional hearings and debates concerning the amendments focused primarily on the politically sensitive problems of priority and geographic distribution of grants under the supplemental appropriation.17 The result of this attention was inclusion in the 1977 Act of provisions revising the allocation criteria of the 1976 legislation. Those provisions, however, retained the underlying objective to direct funds into areas of high unemployment.18 The 1977 Act also added new restrictions on applicants seeking to qualify for federal grants;19 among these was the MBE provision.The origin of the provision was an amendment to the House version of the 1977 Act, H. R. 11, offered on the floor of the House on February 23, 1977, by Representative Mitchell of Maryland.20 As offered, the amendment provided:21 "Notwithstanding any other provision of law, no grant shall be made under this Act for any local public works project unless at least 10 per centum of the articles, materials, and supplies which will be used in such project are procured from minority business enterprises. For purposes of this paragraph, the term `minority business enterprise' means a business at least 50 percent of which is owned by minority group members or, in case of publicly owned businesses, at least 51 percent of the stock of which is owned by minority group members. For the purposes of the preceding sentence, minority group members are citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." The sponsor stated that the objective of the amendment was to direct funds into the minority business community, a sector of the economy sorely in need of economic stimulus but which, on the basis of past experience with Government procurement programs, could not be expected to benefit significantly from the public works program as then formulated.22 He cited the marked statistical disparity that in fiscal year 1976 less than 1% of all federal procurement was concluded with minority business enterprises, although minorities comprised 15-18% of the population.23 When the amendment was put forward during debate on H. R. 11,24 Representative Mitchell reiterated the need to ensure that minority firms would obtain a fair opportunity to share in the benefits of this Government program.25 The amendment was put forward not as a new concept, but rather one building upon prior administrative practice. In his introductory remarks, the sponsor rested his proposal squarely on the ongoing program under 8 (a) of the Small Business Act, Pub. L. 85-536, 2, 72 Stat. 389, which, as will become evident, served as a model for the administrative program developed to enforce the MBE provision:26 "The first point in opposition will be that you cannot have a set-aside. Well, Madam Chairman, we have been doing this for the last 10 years in Government. The 8-A set-aside under SBA has been tested in the courts more than 30 times and has been found to be legitimate and bona fide. We are doing it in this bill." Although the proposed MBE provision on its face appeared mandatory, requiring compliance with the 10% minority participation requirement "[n]otwithstanding any other provision of law," its sponsor gave assurances that existing administrative practice would ensure flexibility in administration if, with respect to a particular project, compliance with the 10% requirement proved infeasible.27 Representative Roe of New Jersey then suggested a change of language expressing the twin intentions (1) that the federal administrator would have discretion to waive the 10% requirement where its application was not feasible, and (2) that the grantee would be mandated to achieve at least 10% participation by minority businesses unless infeasibility was demonstrated.28 He proposed as a substitute for the first sentence of the amendment the language that eventually was enacted:29 "Except to the extent that the Secretary determines otherwise, no grant shall be made under this Act for any local public works project unless the applicant gives satisfactory assurance to the Secretary that at least 10 percent of the amount of each grant shall be expended for minority business enterprises." The sponsor fully accepted the suggested clarification because it retained the directive that the initial burden of compliance would fall on the grantee. That allocation of burden was necessary because, as he put it, "every agency of the Government has tried to figure out a way to avoid doing this very thing. Believe me, these bureaucracies can come up with 10,000 ways to avoid doing it."30 Other supporters of the MBE amendment echoed the sponsor's concern that a number of factors, difficult to isolate or quantify, seemed to impair access by minority businesses to public contracting opportunities. Representative Conyers of Michigan spoke of the frustration of the existing situation, in which, due to the intricacies of the bidding process and through no fault of their own, minority contractors and businessmen were unable to gain access to government contracting opportunities.31 Representative Biaggi of New York then spoke to the need for the amendment to "promote a sense of economic equality in this nation." He expressed the view that without the amendment, "this legislation may be potentially inequitable to minority businesses and workers" in that it would perpetuate the historic practices that have precluded minority businesses from effective participation in public contracting opportunities.32 The amendment was accepted by the House.33 Two weeks later, the Senate considered S. 427, its package of amendments to the Local Public Works Capital Development and Investment Act of 1976. At that time Senator Brooke of Massachusetts introduced an MBE amendment, worded somewhat differently than the House version, but aimed at achieving the same objectives.34 His statement in support of the 10% requirement reiterated and summarized the various expressions on the House side that the amendment was necessary to ensure that minority businesses were not deprived of access to the government contracting opportunities generated by the public works program.35 The Senate adopted the amendment without debate.36 The Conference Committee, called to resolve differences between the House and Senate versions of the Public Works Employment Act of 1977, adopted the language approved by the House for the MBE provision.37 The Conference Reports added only the comment: "This provision shall be dependent on the availability of minority business enterprises located in the project area."38 The device of a 10% MBE participation requirement, subject to administrative waiver, was thought to be required to assure minority business participation; otherwise it was thought that repetition of the prior experience could be expected, with participation by minority business accounting for an inordinately small percentage of government contracting. The causes of this disparity were perceived as involving the longstanding existence and maintenance of barriers impairing access by minority enterprises to public contracting opportunities, or sometimes as involving more direct discrimination, but not as relating to lack - as Senator Brooke put it - "of capable and qualified minority enterprises who are ready and willing to work."39 In the words of its sponsor, the MBE provision was "designed to begin to redress this grievance that has been extant for so long."40 BThe legislative objectives of the MBE provision must be considered against the background of ongoing efforts directed toward deliverance of the century-old promise of equality of economic opportunity. The sponsors of the MBE provision in the House and the Senate expressly linked the provision to the existing administrative programs promoting minority opportunity in government procurement, particularly those related to 8 (a) of the Small Business Act of 1953.41 Section 8 (a) delegates to the Small Business Administration (SBA) an authority and an obligation "whenever it determines such action is necessary" to enter into contracts with any procurement agency of the Federal Government to furnish required goods or services, and, in turn, to enter into subcontracts with small businesses for the performance of such contracts. This authority lay dormant for a decade. Commencing in 1968, however, the SBA was directed by the President42 to develop a program pursuant to its 8 (a) authority to assist small business concerns owned and controlled by "socially or economically disadvantaged" persons to achieve a competitive position in the economy.At the time the MBE provision was enacted, the regulations governing the 8 (a) program defined "social or economic disadvantage" as follows:43 "An applicant concern must be owned and controlled by one or more persons who have been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage. Such disadvantage may arise from cultural, social, chronic economic circumstances or background, or other similar cause. Such persons include, but are not limited to, black Americans, American Indians, Spanish-Americans, oriental Americans, Eskimos, and Aleuts... ." The guidelines accompanying these regulations provided that a minority business could not be maintained in the program, even when owned and controlled by members of the identified minority groups, if it appeared that the business had not been deprived of the opportunity to develop and maintain a competitive position in the economy because of social or economic disadvantage.44 As the Congress began consideration of the Public Works Employment Act of 1977, the House Committee on Small Business issued a lengthy Report summarizing its activities, including its evaluation of the ongoing 8 (a) program.45 One chapter of the Report, entitled "Minority Enterprises and Allied Problems of Small Business," summarized a 1975 Committee Report of the same title dealing with this subject matter.46 The original Report, prepared by the House Sub-committee on SBA Oversight and Minority Enterprise, observed:47 "The subcommittee is acutely aware that the economic policies of this Nation must function within and be guided by our constitutional system which guarantees `equal protection of the laws.' The effects of past inequities stemming from racial prejudice have not remained in the past. The Congress has recognized the reality that past discriminatory practices have, to some degree, adversely affected our present economic system. "While minority persons comprise about 16 percent of the Nation's population, of the 13 million businesses in the United States, only 382,000, or approximately 3.0 percent, are owned by minority individuals. The most recent data from the Department of Commerce also indicates that the gross receipts of all businesses in this country totals about $2,540.8 billion, and of this amount only $16.6 billion, or about 0.65 percent was realized by minority business concerns. "These statistics are not the result of random chance. The presumption must be made that past discriminatory systems have resulted in present economic inequities. In order to right this situation, the Congress has formulated certain remedial programs designed to uplift those socially or economically disadvantaged persons to a level where they may effectively participate in the business mainstream of our economy.[*] "[*] For the purposes of this report the term `minority' shall include only such minority individuals as are considered to be economically or socially disadvantaged."48 The 1975 Report gave particular attention to the 8 (a) program, expressing disappointment with its limited effectiveness.49 With specific reference to Government construction contracting, the Report concluded, "there are substantial 8 (a) opportunities in the area of Federal construction, but ... the practices of some agencies preclude the realization of this potential."50 The Subcommittee took "full notice ... as evidence for its consideration" of reports submitted to the Congress by the General Accounting Office and by the U.S. Commission on Civil Rights, which reflected a similar dissatisfaction with the effectiveness of the 8 (a) program.51 The Civil Rights Commission report discussed at some length the barriers encountered by minority businesses in gaining access to government contracting opportunities at the federal, state, and local levels.52 Among the major difficulties confronting minority businesses were deficiencies in working capital, inability to meet bonding requirements, disabilities caused by an inadequate "track record," lack of awareness of bidding opportunities, unfamiliarity with bidding procedures, preselection before the formal advertising process, and the exercise of discretion by government procurement officers to disfavor minority businesses.53 The Subcommittee Report also gave consideration to the operations of the Office of Minority Business Enterprise, an agency of the Department of Commerce organized pursuant to Executive Orders54 to formulate and coordinate federal efforts to assist the development of minority businesses. The Report concluded that OMBE efforts were "totally inadequate" to achieve its policy of increasing opportunities for subcontracting by minority businesses on public contracts. OMBE efforts were hampered by a "glaring lack of specific objectives which each prime contractor should be required to achieve," by a "lack of enforcement provisions," and by a "lack of any meaningful monitoring system."55 Against this backdrop of legislative and administrative programs, it is inconceivable that Members of both Houses were not fully aware of the objectives of the MBE provision and of the reasons prompting its enactment. CAlthough the statutory MBE provision itself outlines only the bare bones of the federal program, it makes a number of critical determinations: the decision to initiate a limited racial and ethnic preference; the specification of a minimum level for minority business participation; the identification of the minority groups that are to be encompassed by the program; and the provision for an administrative waiver where application of the program is not feasible. Congress relied on the administrative agency to flesh out this skeleton, pursuant to delegated rulemaking authority, and to develop an administrative operation consistent with legislative intentions and objectives.As required by the Public Works Employment Act of 1977, the Secretary of Commerce promulgated regulations to set into motion "Round II" of the federal grant program.56 The regulations require that construction projects funded under the legislation must be performed under contracts awarded by competitive bidding, unless the federal administrator has made a determination that in the circumstances relating to a particular project some other method is in the public interest. Where competitive bidding is employed, the regulations echo the statute's requirement that contracts are to be awarded on the basis of the "lowest responsive bid submitted by a bidder meeting established criteria of responsibility," and they also restate the MBE requirement.57 EDA also has published guidelines devoted entirely to the administration of the MBE provision. The guidelines outline the obligations of the grantee to seek out all available, qualified, bona fide MBE's, to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's in obtaining required working capital, and to give guidance through the intricacies of the bidding process.58 EDA regulations contemplate that, as anticipated by Congress, most local public works projects will entail the award of a predominant prime contract, with the prime contractor assuming the above grantee obligations for fulfilling the 10% MBE requirement.59 The EDA guidelines specify that when prime contractors are selected through competitive bidding, bids for the prime contract "shall be considered by the Grantee to be responsive only if at least 10 percent of the contract funds are to be expended for MBE's."60 The administrative program envisions that competitive incentive will motivate aspirant prime contractors to perform their obligations under the MBE provision so as to qualify as "responsive" bidders. And, since the contract is to be awarded to the lowest responsive bidder, the same incentive is expected to motivate prime contractors to seek out the most competitive of the available, qualified, bona fide minority firms. This too is consistent with the legislative intention.61 The EDA guidelines also outline the projected administration of applications for waiver of the 10% MBE requirement, which may be sought by the grantee either before or during the bidding process.62 The Technical Bulletin issued by EDA discusses in greater detail the processing of waiver requests, clarifying certain issues left open by the guidelines. It specifies that waivers may be total or partial, depending on the circumstances,63 and it illustrates the projected operation of the waiver procedure by posing hypothetical questions with projected administrative responses. One such hypothetical is of particular interest, for it indicates the limitations on the scope of the racial or ethnic preference contemplated by the federal program when a grantee or its prime contractor is confronted with an available, qualified, bona fide minority business enterprise who is not the lowest competitive bidder. The hypothetical provides:64 "Question: Should a request for waiver of the 10% requirement based on an unreasonable price asked by an MBE ever be granted?"Answer: It is possible to imagine situations where an MBE might ask a price for its product or services that is unreasonable and where, therefore, a waiver is justified. However, before a waiver request will be honored, the following determinations will be made: "a) The MBE's quote is unreasonably priced. This determination should be based on the nature of the product or service of the subcontractor, the geographic location of the site and of the subcontractor, prices of similar products or services in the relevant market area, and general business conditions in the market area. Furthermore, a subcontractor's price should not be considered unreasonable if he is merely trying to cover his costs because the price results from disadvantage which affects the MBE's cost of doing business or results from discrimination. "b) The contractor has contacted other MBEs and has no meaningful choice but to accept an unreasonably high price." This announced policy makes clear the administrative understanding that a waiver or partial waiver is justified (and will be granted) to avoid subcontracting with a minority business enterprise at an "unreasonable" price, i. e., a price above competitive levels which cannot be attributed to the minority firm's attempt to cover costs inflated by the present effects of disadvantage or discrimination.This administrative approach is consistent with the legislative intention. It will be recalled that in the Report of the House Subcommittee on SBA Oversight and Minority Enterprise the Subcommittee took special care to note that when using the term "minority" it intended to include "only such minority individuals as are considered to be economically or socially disadvantaged."65 The Subcommittee also was cognizant of existing administrative regulations designed to ensure that firms maintained on the lists of bona fide minority business enterprises be those whose competitive position is impaired by the effects of disadvantage and discrimination. In its Report, the Subcommittee expressed its intention that these criteria continue to govern administration of the SBA's 8 (a) program.66 The sponsors of the MBE provision, in their reliance on prior administrative practice, intended that the term "minority business enterprise" would be given that same limited application; this even found expression in the legislative debates, where Representative Roe made the point:67 "[W]hen we are talking about companies held by minority groups ... [c]ertainly people of a variety of backgrounds are included in that. That is not really a measurement. They are talking about people in the minority and deprived." The EDA Technical Bulletin provides other elaboration of the MBE provision. It clarifies the definition of "minority group members."68 It also indicates EDA's intention "to allow credit for utilization of MBEs only for those contracts in which involvement constitutes a basis for strengthening the long-term and continuing participation of the MBE in the construction and related industries."69 Finally, the Bulletin outlines a procedure for the processing of complaints of "unjust participation by an enterprise or individuals in the MBE program," or of improper administration of the MBE requirement.70 IIIWhen we are required to pass on the constitutionality of an Act of Congress, we assume "the gravest and most delicate duty that this Court is called on to perform." Blodgett v. Holden, (opinion of Holmes, J.). A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to "provide for the ... general Welfare of the United States" and "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment. Art. I, 8, cl. 1; Amdt. 14, 5. In Columbia Broadcasting System, Inc. v. Democratic National Committee, , we accorded "great weight to the decisions of Congress" even though the legislation implicated fundamental constitutional rights guaranteed by the First Amendment. The rule is not different when a congressional program raises equal protection concerns. See, e. g., Cleland v. National College of Business, ; Mathews v. De Castro, . Here we pass, not on a choice made by a single judge or a school board, but on a considered decision of the Congress and the President. However, in no sense does that render it immune from judicial scrutiny, and it "is not to say we `defer' to the judgment of the Congress ... on a constitutional question," or that we would hesitate to invoke the Constitution should we determine that Congress has overstepped the bounds of its constitutional power. Columbia Broadcasting, supra, at 103.The clear objective of the MBE provision is disclosed by our necessarily extended review of its legislative and administrative background. The program was designed to ensure that, to the extent federal funds were granted under the Public Works Employment Act of 1977, grantees who elect to participate would not employ procurement practices that Congress had decided might result in perpetuation of the effects of prior discrimination which had impaired or foreclosed access by minority businesses to public contracting opportunities. The MBE program does not mandate the allocation of federal funds according to inflexible percentages solely based on race or ethnicity.Our analysis proceeds in two steps. At the outset, we must inquire whether the objectives of this legislation are within the power of Congress. If so, we must go on to decide whether the limited use of racial and ethnic criteria, in the context presented, is a constitutionally permissible means for achieving the congressional objectives and does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.A(1)In enacting the MBE provision, it is clear that Congress employed an amalgam of its specifically delegated powers. The Public Works Employment Act of 1977, by its very nature, is primarily an exercise of the Spending Power. U.S. Const., Art. I, 8, cl. 1. This Court has recognized that the power to "provide for the ... general Welfare" is an independent grant of legislative authority, distinct from other broad congressional powers. Buckley v. Valeo, ; United States v. Butler, . Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy. E. g., California Bankers Assn. v. Shultz, ; Lau v. Nichols, ; Oklahoma v. CSC, ; Helvering v. Davis, ; Steward Machine Co. v. Davis, .The MBE program is structured within this familiar legislative pattern. The program conditions receipt of public works grants upon agreement by the state or local governmental grantee that at least 10% of the federal funds will be devoted to contracts with minority businesses, to the extent this can be accomplished by overcoming barriers to access and by awarding contracts to bona fide MBE's. It is further conditioned to require that MBE bids on these contracts are competitively priced, or might have been competitively priced but for the present effects of prior discrimination. Admittedly, the problems of administering this program with respect to these conditions may be formidable. Although the primary responsibility for ensuring minority participation falls upon the grantee, when the procurement practices of the grantee involve the award of a prime contract to a general or prime contractor, the obligations to assure minority participation devolve upon the private contracting party; this is a contractual condition of eligibility for award of the prime contract. Here we need not explore the outermost limitations on the objectives attainable through such an application of the Spending Power. The reach of the Spending Power, within its sphere, is at least as broad as the regulatory powers of Congress. If, pursuant to its regulatory powers, Congress could have achieved the objectives of the MBE program, then it may do so under the Spending Power. And we have no difficulty perceiving a basis for accomplishing the objectives of the MBE program through the Commerce Power insofar as the program objectives pertain to the action of private contracting parties, and through the power to enforce the equal protection guarantees of the Fourteenth Amendment insofar as the program objectives pertain to the action of state and local grantees.(2)We turn first to the Commerce Power. U.S. Const., Art. I, 8, cl. 3. Had Congress chosen to do so, it could have drawn on the Commerce Clause to regulate the practices of prime contractors on federally funded public works projects. Katzenbach v. McClung, ; Heart of Atlanta Motel, Inc. v. United States, . The legislative history of the MBE provision shows that there was a rational basis for Congress to conclude that the subcontracting practices of prime contractors could perpetuate the prevailing impaired access by minority businesses to public contracting opportunities, and that this inequity has an effect on interstate commerce. Thus Congress could take necessary and proper action to remedy the situation. Ibid.It is not necessary that these prime contractors be shown responsible for any violation of antidiscrimination laws. Our cases dealing with application of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, express no doubt of the congressional authority to prohibit practices "challenged as perpetuating the effects of [not unlawful] discrimination occurring prior to the effective date of the Act." Franks v. Bowman Transportation Co., ; see California Brewers Assn. v. Bryant, ; Teamsters v. United States, ; Albemarle Paper Co. v. Moody, ; Griggs v. Duke Power Co., . Insofar as the MBE program pertains to the actions of private prime contractors, the Congress could have achieved its objectives under the Commerce Clause. We conclude that in this respect the objectives of the MBE provision are within the scope of the Spending Power.(3)In certain contexts, there are limitations on the reach of the Commerce Power to regulate the actions of state and local governments. National League of Cities v. Usery, . To avoid such complications, we look to 5 of the Fourteenth Amendment for the power to regulate the procurement practices of state and local grantees of federal funds. Fitzpatrick v. Bitzer, . A review of our cases persuades us that the objectives of the MBE program are within the power of Congress under 5 "to enforce, by appropriate legislation," the equal protection guarantees of the Fourteenth Amendment.In Katzenbach v. Morgan, , we equated the scope of this authority with the broad powers expressed in the Necessary and Proper Clause, U.S. Const., Art. I, 8, cl. 18. "Correctly viewed, 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." 384 U.S., at 651. In Katzenbach, the Court upheld 4 (e) of the Voting Rights Act of 1965, 79 Stat. 439, 42 U.S.C. 1973b (e), which prohibited application of state English-language literacy requirements to otherwise qualified voters who had completed the sixth grade in an accredited American school in which a language other than English was the predominant medium of instruction. To uphold this exercise of congressional authority, the Court found no prerequisite that application of a literacy requirement violate the Equal Protection Clause. 384 U.S., at 648-649. It was enough that the Court could perceive a basis upon which Congress could reasonably predicate a judgment that application of literacy qualifications within the compass of 4 (e) would discriminate in terms of access to the ballot and consequently in terms of access to the provision or administration of governmental programs. Id., at 652-653.Four years later, in Oregon v. Mitchell, , we upheld 201 of the Voting Rights Act Amendments of 1970, 84 Stat. 315, which imposed a 5-year nationwide prohibition on the use of various voter-qualification tests and devices in federal, state, and local elections. The Court was unanimous, albeit in separate opinions, in concluding that Congress was within its authority to prohibit the use of such voter qualifications; Congress could reasonably determine that its legislation was an appropriate method of attacking the perpetuation of prior purposeful discrimination, even though the use of these tests or devices might have discriminatory effects only. See City of Rome v. United States, . Our cases reviewing the parallel power of Congress to enforce the provisions of the Fifteenth Amendment, U.S. Const., Amdt. 15, 2, confirm that congressional authority extends beyond the prohibition of purposeful discrimination to encompass state action that has discriminatory impact perpetuating the effects of past discrimination. South Carolina v. Katzenbach, ; cf. City of Rome, supra.With respect to the MBE provision, Congress had abundant evidence from which it could conclude that minority businesses have been denied effective participation in public contracting opportunities by procurement practices that perpetuated the effects of prior discrimination. Congress, of course, may legislate without compiling the kind of "record" appropriate with respect to judicial or administrative proceedings. Congress had before it, among other data, evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business enterprises. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination, and which continue today, even absent any intentional discrimination or other unlawful conduct. Although much of this history related to the experience of minority businesses in the area of federal procurement, there was direct evidence before the Congress that this pattern of disadvantage and discrimination existed with respect to state and local construction contracting as well. In relation to the MBE provision, Congress acted within its competence to determine that the problem was national in scope.Although the Act recites no preambulary "findings" on the subject, we are satisfied that Congress had abundant historical basis from which it could conclude that traditional procurement practices, when applied to minority businesses, could perpetuate the effects of prior discrimination. Accordingly, Congress reasonably determined that the prospective elimination of these barriers to minority firm access to public contracting opportunities generated by the 1977 Act was appropriate to ensure that those businesses were not denied equal opportunity to participate in federal grants to state and local governments, which is one aspect of the equal protection of the laws. Insofar as the MBE program pertains to the actions of state and local grantees, Congress could have achieved its objectives by use of its power under 5 of the Fourteenth Amendment. We conclude that in this respect the objectives of the MBE provision are within the scope of the Spending Power. (4)There are relevant similarities between the MBE program and the federal spending program reviewed in Lau v. Nichols, . In Lau, a language barrier "effectively foreclosed" non-English-speaking Chinese pupils from access to the educational opportunities offered by the San Francisco public school system. Id., at 564-566. It had not been shown that this had resulted from any discrimination, purposeful or otherwise, or from other unlawful acts. Nevertheless, we upheld the constitutionality of a federal regulation applicable to public school systems receiving federal funds that prohibited the utilization of "criteria or methods of administration which have the effect ... of defeating or substantially impairing accomplishment of the objectives of the [educational] program as respect individuals of a particular race, color, or national origin." Id., at 568 (emphasis added). Moreover, we upheld application to the San Francisco school system, as a recipient of federal funds, of a requirement that "[w]here inability to speak and understand the English language excludes national origin-minority group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiency in order to open its instructional program to these students." Ibid.It is true that the MBE provision differs from the program approved in Lau in that the MBE program directly employs racial and ethnic criteria as a means to accomplish congressional objectives; however, these objectives are essentially the same as those approved in Lau. Our holding in Lau is instructive on the exercise of congressional authority by way of the MBE provision. The MBE program, like the federal regulations reviewed in Lau, primarily regulates state action in the use of federal funds voluntarily sought and accepted by the grantees subject to statutory and administrative conditions. The MBE participation requirement is directed at the utilization of criteria, methods, or practices thought by Congress to have the effect of defeating, or substantially impairing, access by the minority business community to public funds made available by congressional appropriations.BWe now turn to the question whether, as a means to accomplish these plainly constitutional objectives, Congress may use racial and ethnic criteria, in this limited way, as a condition attached to a federal grant. We are mindful that "[i]n no matter should we pay more deference to the opinion of Congress than in its choice of instrumentalities to perform a function that is within its power," National Mutual Insurance Co. v. Tidewater Transfer Co., (opinion of Jackson, J.). However, Congress may employ racial or ethnic classifications in exercising its Spending or other legislative powers only if those classifications do not violate the equal protection component of the Due Process Clause of the Fifth Amendment. We recognize the need for careful judicial evaluation to assure that any congressional program that employs racial or ethnic criteria to accomplish the objective of remedying the present effects of past discrimination is narrowly tailored to the achievement of that goal.Again, we stress the limited scope of our inquiry. Here we are not dealing with a remedial decree of a court but with the legislative authority of Congress. Furthermore, petitioners have challenged the constitutionality of the MBE provision on its face; they have not sought damages or other specific relief for injury allegedly flowing from specific applications of the program; nor have they attempted to show that as applied in identified situations the MBE provision violated the constitutional or statutory rights of any party to this case.71 In these circumstances, given a reasonable construction and in light of its projected administration, if we find the MBE program on its face to be free of constitutional defects, it must be upheld as within congressional power. Parker v. Levy, ; Fortson v. Dorsey, ; Aptheker v. Secretary of State, ; see United States v. Raines, .Our review of the regulations and guidelines governing administration of the MBE provision reveals that Congress enacted the program as a strictly remedial measure; moreover, it is a remedy that functions prospectively, in the manner of an injunctive decree. Pursuant to the administrative program, grantees and their prime contractors are required to seek out all available, qualified, bona fide MBE's; they are required to provide technical assistance as needed, to lower or waive bonding requirements where feasible, to solicit the aid of the Office of Minority Business Enterprise, the SBA, or other sources for assisting MBE's to obtain required working capital, and to give guidance through the intricacies of the bidding process. Supra, at 468-469. The program assumes that grantees who undertake these efforts in good faith will obtain at least 10% participation by minority business enterprises. It is recognized that, to achieve this target, contracts will be awarded to available, qualified, bona fide MBE's even though they are not the lowest competitive bidders, so long as their higher bids, when challenged, are found to reflect merely attempts to cover costs inflated by the present effects of prior disadvantage and discrimination. Supra, at 470-471. There is available to the grantee a provision authorized by Congress for administrative waiver on a case-by-case basis should there be a demonstration that, despite affirmative efforts, this level of participation cannot be achieved without departing from the objectives of the program. Supra, at 469-470. There is also an administrative mechanism, including a complaint procedure, to ensure that only bona fide MBE's are encompassed by the remedial program, and to prevent unjust participation in the program by those minority firms whose access to public contracting opportunities is not impaired by the effects of prior discrimination. Supra, at 471-472.(1)As a threshold matter, we reject the contention that in the remedial context the Congress must act in a wholly "color-blind" fashion. In Swann v. Charlotte-Mecklenburg Board of Education, , we rejected this argument in considering a court-formulated school desegregation remedy on the basis that examination of the racial composition of student bodies was an unavoidable starting point and that racially based attendance assignments were permissible so long as no absolute racial balance of each school was required. In McDaniel v. Barresi, , citing Swann, we observed: "In this remedial process, steps will almost invariably require that students be assigned `differently because of their race.' Any other approach would freeze the status quo that is the very target of all desegregation processes." (Citations omitted.) And in North Carolina Board of Education v. Swann, , we invalidated a state law that absolutely forbade assignment of any student on account of race because it foreclosed implementation of desegregation plans that were designed to remedy constitutional violations. We held that "[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." Id., at 46. In these school desegregation cases we dealt with the authority of a federal court to formulate a remedy for unconstitutional racial discrimination. However, the authority of a court to incorporate racial criteria into a remedial decree also extends to statutory violations. Where federal antidiscrimination laws have been violated, an equitable remedy may in the appropriate case include a racial or ethnic factor. Franks v. Bowman Transportation Co., ; see Teamsters v. United States, ; Albemarle Paper Co. v. Moody, . In another setting, we have held that a state may employ racial criteria that are reasonably necessary to assure compliance with federal voting rights legislation, even though the state action does not entail the remedy of a constitutional violation. United Jewish Organizations of Williamsburgh, Inc. v. Carey, (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); id., at 180-187 (BURGER, C. J., dissenting on other grounds).When we have discussed the remedial powers of a federal court, we have been alert to the limitation that "[t]he power of the federal courts to restructure the operation of local and state governmental entities `is not plenary ... .' [A] federal court is required to tailor `the scope of the remedy' to fit the nature and extent of the ... violation." Dayton Board of Education v. Brinkman, (quoting Milliken v. Bradley, , and Swann v. Charlotte-Mecklenburg Board of Education, supra, at 16).Here we deal, as we noted earlier, not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees. Congress not only may induce voluntary action to assure compliance with existing federal statutory or constitutional antidiscrimination provisions, but also, where Congress has authority to declare certain conduct unlawful, it may, as here, authorize and induce state action to avoid such conduct. Supra, at 473-480.(2)A more specific challenge to the MBE program is the charge that it impermissibly deprives nonminority businesses of access to at least some portion of the government contracting opportunities generated by the Act. It must be conceded that by its objective of remedying the historical impairment of access, the MBE provision can have the effect of awarding some contracts to MBE's which otherwise might be awarded to other businesses, who may themselves be innocent of any prior discriminatory actions. Failure of nonminority firms to receive certain contracts is, of course, an incidental consequence of the program, not part of its objective; similarly, past impairment of minority-firm access to public contracting opportunities may have been an incidental consequence of "business as usual" by public contracting agencies and among prime contractors.It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks, supra, at 777; see Albemarle Paper Co., supra; United Jewish Organizations, supra. The actual "burden" shouldered by nonminority firms is relatively light in this connection when we consider the scope of this public works program as compared with overall construction contracting opportunities.72 Moreover, although we may assume that the complaining parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.(3)Another challenge to the validity of the MBE program is the assertion that it is underinclusive - that it limits its benefit to specified minority groups rather than extending its remedial objectives to all businesses whose access to government contracting is impaired by the effects of disadvantage or discrimination. Such an extension would, of course, be appropriate for Congress to provide; it is not a function for the courts.Even in this context, the well-established concept that a legislature may take one step at a time to remedy only part of a broader problem is not without relevance. See Dandridge v. Williams, ; Williamson v. Lee Optical Co., . We are not reviewing a federal program that seeks to confer a preferred status upon a nondisadvantaged minority or to give special assistance to only one of several groups established to be similarly disadvantaged minorities. Even in such a setting, the Congress is not without a certain authority. See, e. g., Personnel Administrator of Massachusetts v. Feeney, ; Califano v. Webster, ; Morton v. Mancari, .The Congress has not sought to give select minority groups a preferred standing in the construction industry, but has embarked on a remedial program to place them on a more equitable footing with respect to public contracting opportunities. There has been no showing in this case that Congress has inadvertently effected an invidious discrimination by excluding from coverage an identifiable minority group that has been the victim of a degree of disadvantage and discrimination equal to or greater than that suffered by the groups encompassed by the MBE program. It is not inconceivable that on very special facts a case might be made to challenge the congressional decision to limit MBE eligibility to the particular minority groups identified in the Act. See Vance v. Bradley, ; Oregon v. Mitchell, 400 U.S., at 240 (opinion of BRENNAN, WHITE, and MARSHALL, JJ.). But on this record we find no basis to hold that Congress is without authority to undertake the kind of limited remedial effort represented by the MBE program. Congress, not the courts, has the heavy burden of dealing with a host of intractable economic and social problems.(4)It is also contended that the MBE program is overinclusive - that it bestows a benefit on businesses identified by racial or ethnic criteria which cannot be justified on the basis of competitive criteria or as a remedy for the present effects of identified prior discrimination. It is conceivable that a particular application of the program may have this effect; however, the peculiarities of specific applications are not before us in this case. We are not presented here with a challenge involving a specific award of a construction contract or the denial of a waiver request; such questions of specific application must await future cases.This does not mean that the claim of overinclusiveness is entitled to no consideration in the present case. The history of governmental tolerance of practices using racial or ethnic criteria for the purpose or with the effect of imposing an invidious discrimination must alert us to the deleterious effects of even benign racial or ethnic classifications when they stray from narrow remedial justifications. Even in the context of a facial challenge such as is presented in this case, the MBE provision cannot pass muster unless, with due account for its administrative program, it provides a reasonable assurance that application of racial or ethnic criteria will be limited to accomplishing the remedial objectives of Congress and that misapplications of the program will be promptly and adequately remedied administratively.It is significant that the administrative scheme provides for waiver and exemption. Two fundamental congressional assumptions underlie the MBE program: (1) that the present effects of past discrimination have impaired the competitive position of businesses owned and controlled by members of minority groups; and (2) that affirmative efforts to eliminate barriers to minority-firm access, and to evaluate bids with adjustment for the present effects of past discrimination, would assure that at least 10% of the federal funds granted under the Public Works Employment Act of 1977 would be accounted for by contracts with available, qualified, bona fide minority business enterprises. Each of these assumptions may be rebutted in the administrative process.The administrative program contains measures to effectuate the congressional objective of assuring legitimate participation by disadvantaged MBE's. Administrative definition has tightened some less definite aspects of the statutory identification of the minority groups encompassed by the program.73 There is administrative scrutiny to identify and eliminate from participation in the program MBE's who are not "bona fide" within the regulations and guidelines; for example, spurious minority-front entities can be exposed. A significant aspect of this surveillance is the complaint procedure available for reporting "unjust participation by an enterprise or individuals in the MBE program." Supra, at 472. And even as to specific contract awards, waiver is available to avoid dealing with an MBE who is attempting to exploit the remedial aspects of the program by charging an unreasonable price, i. e., a price not attributable to the present effects of past discrimination. Supra, at 469-471. We must assume that Congress intended close scrutiny of false claims and prompt action on them.Grantees are given the opportunity to demonstrate that their best efforts will not succeed or have not succeeded in achieving the statutory 10% target for minority firm participation within the limitations of the program's remedial objectives. In these circumstances a waiver or partial waiver is available once compliance has been demonstrated. A waiver may be sought and granted at any time during the contracting process, or even prior to letting contracts if the facts warrant. Nor is the program defective because a waiver may be sought only by the grantee and not by prime contractors who may experience difficulty in fulfilling contract obligations to assure minority participation. It may be administratively cumbersome, but the wisdom of concentrating responsibility at the grantee level is not for us to evaluate; the purpose is to allow the EDA to maintain close supervision of the operation of the MBE provision. The administrative complaint mechanism allows for grievances of prime contractors who assert that a grantee has failed to seek a waiver in an appropriate case. Finally, we note that where private parties, as opposed to governmental entities, transgress the limitations inherent in the MBE program, the possibility of constitutional violation is more removed. See Steelworkers v. Weber, .That the use of racial and ethnic criteria is premised on assumptions rebuttable in the administrative process gives reasonable assurance that application of the MBE program will be limited to accomplishing the remedial objectives contemplated by Congress and that misapplications of the racial and ethnic criteria can be remedied. In dealing with this facial challenge to the statute, doubts must be resolved in support of the congressional judgment that this limited program is a necessary step to effectuate the constitutional mandate for equality of economic opportunity. The MBE provision may be viewed as a pilot project, appropriately limited in extent and duration, and subject to reassessment and revaluation by the Congress prior to any extension or re-enactment.74 Miscarriages of administration could have only a transitory economic impact on businesses not encompassed by the program, and would not be irremediable. IVCongress, after due consideration, perceived a pressing need to move forward with new approaches in the continuing effort to achieve the goal of equality of economic opportunity. In this effort, Congress has necessary latitude to try new techniques such as the limited use of racial and ethnic criteria to accomplish remedial objectives; this is especially so in programs where voluntary cooperation with remedial measures is induced by placing conditions on federal expenditures. That the program may press the outer limits of congressional authority affords no basis for striking it down.Petitioners have mounted a facial challenge to a program developed by the politically responsive branches of Government. For its part, the Congress must proceed only with programs narrowly tailored to achieve its objectives, subject to continuing evaluation and reassessment; administration of the programs must be vigilant and flexible; and, when such a program comes under judicial review, courts must be satisfied that the legislative objectives and projected administration give reasonable assurance that the program will function within constitutional limitations. But as Mr. Justice Jackson admonished in a different context in 1941:75 "The Supreme Court can maintain itself and succeed in its tasks only if the counsels of self-restraint urged most earnestly by members of the Court itself are humbly and faithfully heeded. After the forces of conservatism and liberalism, of radicalism and reaction, of emotion and of self-interest are all caught up in the legislative process and averaged and come to rest in some compromise measure such as the Missouri Compromise, the N. R. A., the A. A. A., a minimum-wage law, or some other legislative policy, a decision striking it down closes an area of compromise in which conflicts have actually, if only temporarily, been composed. Each such decision takes away from our democratic federalism another of its defenses against domestic disorder and violence. The vice of judicial supremacy, as exerted for ninety years in the field of policy, has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts." Mr. Justice Jackson reiterated these thoughts shortly before his death in what was to be the last of his Godkin Lectures:76 "I have said that in these matters the Court must respect the limitations on its own powers because judicial usurpation is to me no more justifiable and no more promising of permanent good to the country than any other kind. So I presuppose a Court that will not depart from the judicial process, will not go beyond resolving cases and controversies brought to it in conventional form, and will not consciously encroach upon the functions of its coordinate branches." In a different context to be sure, that is, in discussing the latitude which should be allowed to states in trying to meet social and economic problems, Mr. Justice Brandeis had this to say: "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation." New State Ice Co. v. Liebmann, (dissenting opinion). Any preference based on racial or ethnic criteria must necessarily receive a most searching examination to make sure that it does not conflict with constitutional guarantees. This case is one which requires, and which has received, that kind of examination. This opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in such cases as University of California Regents v. Bakke, . However, our analysis demonstrates that the MBE provision would survive judicial review under either "test" articulated in the several Bakke opinions. The MBE provision of the Public Works Employment Act of 1977 does not violate the Constitution.77 Affirmed. APPENDIX TO OPINION OF BURGER, C. J. § 1. The EDA Guidelines, at 2-7, provide in relevant part: "The primary obligation for carrying out the 10% MBE participation requirement rests with EDA Grantees... . The Grantee and those of its contractors which will make subcontracts or purchase substantial supplies from other firms (hereinafter referred to as `prime contractors') must seek out all available bona fide MBE's and make every effort to use as many of them as possible on the project. "An MBE is bona fide if the minority group ownership interests are real and continuing and not created solely to meet 10% MBE requirements. For example, the minority group owners or stockholders should possess control over management, interest in capital and interest in earnings commensurate with the percentage of ownership on which the claim of minority ownership status is based... . "An MBE is available if the project is located in the market area of the MBE and the MBE can perform project services or supply project materials at the time they are needed. The relevant market area depends on the kind of services or supplies which are needed... . EDA will require that Grantees and prime contractors engage MBE's from as wide a market area as is economically feasible. "An MBE is qualified if it can perform the services or supply the materials that are needed. Grantees and prime contractors will be expected to use MBE's with less experience than available nonminority enterprises and should expect to provide technical assistance to MBE's as needed. Inability to obtain bonding will ordinarily not disqualify an MBE. Grantees and prime contractors are expected to help MBE's obtain bonding, to include MBE's in any overall bond or to waive bonding where feasible. The Small Business Administration (SBA) is prepared to provide a 90% guarantee for the bond of any MBE participating in an LPW [local public works] project. Lack of working capital will not ordinarily disqualify an MBE. SBA is prepared to provide working capital assistance to any MBE participating in an LPW project. Grantees and prime contractors are expected to assist MBE's in obtaining working capital through SBA or otherwise. "... [E]very Grantee should make sure that it knows the names, addresses and qualifications of all relevant MBE's which would include the project location in their market areas... . Grantees should also hold prebid conferences to which they invite interested contractors and representatives of ... MBE support organizations. "Arrangements have been made through the Office of Minority Business Enterprise ... to provide assistance to Grantees and prime contractors in fulfilling the 10% MBE requirement... . "Grantees and prime contractors should also be aware of other support which is available from the Small Business Administration... . "... [T]he Grantee must monitor the performance of its prime contractors to make sure that their commitments to expend funds for MBE's are being fulfilled... . Grantees should administer every project tightly... ." § 2. The EDA guidelines, at 13-15, provide in relevant part: "Although a provision for waiver is included under this section of the Act, EDA will only approve a waiver under exceptional circumstances. The Grantee must demonstrate that there are not sufficient, relevant, qualified minority business enterprises whose market areas include the project location to justify a waiver. The Grantee must detail in its waiver request the efforts the Grantee and potential contractors have exerted to locate and enlist MBE's. The request must indicate the specific MBE's which were contacted and the reason each MBE was not used... . ... . . "Only the Grantee can request a waiver... . Such a waiver request would ordinarily be made after the initial bidding or negotiation procedures proved unsuccessful... . ... . . "[A] Grantee situated in an area where the minority population is very small may apply for a waiver before requesting bids on its project or projects... ." § 3. The EDA Technical Bulletin, at 1, provides the following definitions: "a) Negro - An individual of the black race of African origin. "b) Spanish-speaking - An individual of a Spanish-speaking culture and origin or parentage. "c) Oriental - An individual of a culture, origin or parentage traceable to the areas south of the Soviet Union, East of Iran, inclusive of islands adjacent thereto, and out to the Pacific including but not limited to Indonesia, Indochina, Malaysia, Hawaii and the Philippines. "d) Indian - An individual having origins in any of the original people of North America and who is recognized as an Indian by either a tribe, tribal organization or a suitable authority in the community. (A suitable authority in the community may be: educational institutions, religious organizations, or state agencies.) "e) Eskimo - An individual having origins in any of the original peoples of Alaska. "f) Aleut - An individual having origins in any of the original peoples of the Aleutian Islands." § 4. The EDA Technical Bulletin, at 19, provides in relevant part: "Any person or organization with information indicating unjust participation by an enterprise or individuals in the MBE program or who believes that the MBE participation requirement is being improperly applied should contact the appropriate EDA grantee and provide a detailed statement of the basis for the complaint. "Upon receipt of a complaint, the grantee should attempt to resolve the issues in dispute. In the event the grantee requires assistance in reaching a determination, the grantee should contact the Civil Rights Specialist in the appropriate Regional Office. "If the complainant believes that the grantee has not satisfactorily resolved the issues raised in his complaint, he may personally contact the EDA Regional Office." |
0 | Criminal defendants have a Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie violation of the fair-cross-section requirement, a defendant must prove that: (1) a group qualifying as "distinctive" (2) is not fairly and reasonably represented in jury venires, and (3) "systematic exclusion" in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U. S. 357, 364. At voir dire in the Kent County Circuit Court trial of respondent Smith, an African-American, the venire panel included between 60 and 100 individuals, only 3 of whom, at most, were African-American. At that time, African-Americans constituted 7.28% of the County's jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith's objection to the panel's racial composition, an all-white jury convicted him of second-degree murder and felony firearm possession, and the court sentenced him to life in prison with the possibility of parole. On order of the Michigan Court of Appeals, the trial court conducted an evidentiary hearing on Smith's fair-cross-section claim. The evidence at the hearing showed, inter alia, that under the juror-assignment order in effect when Smith's jury was empaneled, the County assigned prospective jurors first to local district courts, and, only after filling local needs, made remaining persons available to the countywide Circuit Court, which heard felony cases like Smith's. Smith calls this procedure "siphoning." The month after Smith's voir dire, however, the County reversed course and adopted a Circuit-Court-first assignment order. It did so based on the belief that the district courts took most of the minority jurors, leaving the Circuit Court with a jury pool that did not represent the entire County. The trial court noted two means of measuring the underrepresentation of African-Americans on Circuit Court venires. First, the court described the "absolute disparity" test, under which the percentage of African-Americans in the jury pool (6%) is subtracted from the percentage of African-Americans in the local, jury-eligible population (7.28%). According to this measure, African-Americans were underrepresented by 1.28%. Next, the court set out the "comparative disparity" test, under which the absolute disparity (1.28%) is divided by the percentage of African-Americans in the jury-eligible population (7.28%). The quotient (18%) indicated that, on average, African-Americans were 18% less likely, when compared to the overall jury-eligible population, to be on the jury-service list. In the 11 months after Kent County discontinued the district-court-first assignment policy, the comparative disparity, on average, dropped from 18% to 15.1%. The hearing convinced the trial court that African-Americans were underrepresented on Circuit Court venires. But Smith's evidence, the trial court held, was insufficient to prove that the juror-assignment order, or any other part of the jury-selection process, had systematically excluded African-Americans. The court therefore rejected Smith's fair-cross-section claim. The state intermediate appellate court reversed and ordered a new trial with jurors selected under the Circuit-Court-first assignment order. Reversing in turn, the Michigan Supreme Court concluded that Smith had not established a prima facie Sixth Amendment violation. This Court, the state High Court observed, has specified no preferred method for measuring whether representation of a distinctive group in the jury pool is fair and reasonable. The court noted that lower federal courts had applied three tests: the absolute and comparative disparity tests and a standard deviation test. Adopting a case-by-case approach allowing consideration of all three means of measuring underrepresentation, the court found that Smith had failed to establish a legally significant disparity under any measurement. Nevertheless giving Smith the benefit of the doubt on underrepresentation, the court determined that he had not shown systematic exclusion. Smith then filed a federal habeas petition. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal habeas relief unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," §2254(d)(2). Finding no infirmity in the Michigan Supreme Court's decision when assessed under AEDPA's standards, the District Court dismissed Smith's petition. The Sixth Circuit reversed. The Court of Appeals ruled, first, that courts should use the comparative disparity test to measure underrepresentation where, as here, the allegedly excluded group is small. The court then held that Smith's comparative disparity statistics demonstrated that African-Americans' representation in County Circuit Court venires was unfair and unreasonable. It next stated that Smith had shown systematic exclusion. In accord with the Michigan intermediate appellate court, the Sixth Circuit believed that the district-court-first assignment order significantly reduced the number of African-Americans available for Circuit Court venires. Smith was entitled to relief, the Sixth Circuit concluded, because no important state interest supported the district-court-first allocation system.Held: The Sixth Circuit erred in ruling that the Michigan Supreme Court's decision "involv[ed] an unreasonable application o[f] clearly established Federal law," §2254(d)(1). Duren hardly establishes — no less "clearly" so — that Smith was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community. Pp. 10-16. (a) The Duren defendant readily met all three parts of the Court's prima facie test when he complained of the dearth of women in a county's jury pool. First, he showed that women in the county were both "numerous and distinct from men." 439 U. S., at 364. Second, to establish underrepresentation, he proved that women were 54% of the jury-eligible population, but accounted for only 26.7% of those summoned for jury service, and only 14.5% of those on the postsummons weekly venires from which jurors were drawn. Id., at 364-366. Finally, to show the "systematic" cause of the underrepresentation, he pointed to Missouri's law permitting any woman to opt out of jury service and to the manner in which the county administered that law. This Court noted that "appropriately tailored" hardship exemptions would likely survive a fair-cross-section challenge if justified by an important state interest, id., at 370, but concluded that no such interest could justify the exemption for each and every woman, id., at 369-370. Pp. 10-11. (b) Neither Duren nor any other decision of this Court specifies the method or test courts must use to measure underrepresentation. Each of the three methods employed or identified by the courts below — absolute disparity, comparative disparity, and standard deviation — is imperfect. Absolute disparity and comparative disparity measurements can be misleading where, as here, members of the distinctive group compose only a small percentage of the community's jury-eligible population. And it appears that no court has relied exclusively on a standard deviation analysis. Even absent AEDPA's constraint, this Court would have no cause to take sides here on the appropriate method or methods for measuring underrepresentation. Although the Michigan Supreme Court concluded that Smith's statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests, the court nevertheless gave Smith the benefit of the doubt on underrepresentation in order to reach the issue ultimately dispositive in Duren: To the extent underrepresentation existed, was it due to "systematic exclusion"? See Duren, 439 U. S., at 364. Pp. 11-13. (c) Smith's evidence gave the Michigan Supreme Court little reason to conclude that the district-court-first assignment order had any significant effect on the representation of African-Americans on Circuit Court venires. Although the record established that some County officials believed that the assignment order created racial disparities, and the County reversed the order in response, the belief was not substantiated by Smith's evidence. He introduced no evidence that African-Americans were underrepresented on the Circuit Court's venires in significantly higher percentages than on the District Court for Grand Rapids, which had the County's largest African-American population. He did not address whether Grand Rapids had more need for jurors per capita than any other district in Kent County. And he did not compare the African-American representation levels on Circuit Court venires with those on the Federal District Court venires for the same region. See Duren, 439 U. S., at 367, n. 25. Smith's best evidence of systematic exclusion was the decline in comparative underrepresentation, from 18 to 15.1%, after Kent County reversed its assignment order. But that evidence indicated no large change and was, in any event, insufficient to prove that the original assignment order had a significantly adverse impact on the representation of African-Americans on Circuit Court venires. Pp. 13-14. (d) In addition to renewing his "siphoning" argument, Smith urges that a laundry list of factors — e.g., the County's practice of excusing prospective jurors without adequate proof of alleged hardship, and the refusal of County police to enforce orders for prospective jurors to appear — combined to reduce systematically the number of African-Americans appearing on jury lists. No "clearly established" precedent of this Court supports Smith's claim. Smith urges that one sentence in Duren, 439 U. S., at 368-369, places the burden of proving causation on the State. But Smith clipped that sentence from its context: The sentence does not concern the demonstration of a prima face case; instead, it speaks to what the State might show to rebut the defendant's prima facie case. The Michigan Supreme Court was therefore far from "unreasonable," §2254(d)(1), in concluding that Duren first and foremost required Smith himself to show that the underrepresentation complained of was due to systematic exclusion. This Court, furthermore, has never "clearly established" that jury-selection-process features of the kind on Smith's list can give rise to a fair-cross-section claim. Rather, the Taylor Court "recognized broad discretion in the States" to "prescribe relevant qualifications for their jurors and to provide reasonable exemptions." 419 U. S., at 537-538. And in Duren, the Court understood that hardship exemptions resembling those Smith assails might well "survive a fair-cross-section challenge." 439 U. S., at 370. Pp. 14-16.543 F. 3d 326, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion.MARY BERGHUIS, WARDEN, PETITIONER v. DIAPOLIS SMITHon writ of certiorari to the united states court of appeals for the sixth circuit[March 30, 2010] Justice Ginsburg delivered the opinion of the Court. The Sixth Amendment secures to criminal defendants the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522 (1975). The question presented in this case is whether that right was accorded to respondent Diapolis Smith, an African-American convicted of second-degree murder by an all-white jury in Kent County, Michigan in 1993. At the time of Smith's trial, African-Americans constituted 7.28% of Kent County's jury-eligible population, and 6% of the pool from which potential jurors were drawn. In Duren v. Missouri, 439 U. S. 357 (1979), this Court described three showings a criminal defendant must make to establish a prima facie violation of the Sixth Amendment's fair-cross-section requirement. He or she must show: "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id., at 364. The first showing is, in most cases, easily made; the second and third are more likely to generate controversy. The defendant in Duren readily met all three measures. He complained of the dearth of women in the Jackson County, Missouri, jury pool. To establish underrepresentation, he proved that women were 54% of the jury-eligible population, but accounted for only 26.7% of the persons summoned for jury service, and only 14.5% of the persons on the postsummons weekly venires from which jurors were drawn. To show the "systematic" cause of the underrepresentation, Duren pointed to Missouri's law exempting women from jury service, and to the manner in which Jackson County administered the exemption. Concluding that no significant state interest could justify Missouri's explicitly gender-based exemption, this Court held the law, as implemented in Jackson County, violative of the Sixth Amendment's fair-cross-section requirement. We here review the decision of the United States Court of Appeals for the Sixth Circuit holding that Smith "satisf[ied] the prima facie test established by Duren," and granting him habeas corpus relief, i.e., release from imprisonment absent a new trial commenced within 180 days of the Court of Appeals' order. 543 F. 3d 326, 336 (2008). Despite marked differences between Smith's case and Duren's, and a cogent Michigan Supreme Court decision holding that Smith "ha[d] not shown ... systematic exclusion," People v. Smith, 463 Mich. 199, 205, 615 N. W. 2d 1, 3 (2000), the Sixth Circuit found the matter settled. Cognizant of the restrictions Congress placed on federal habeas review of state-court convictions, the Court of Appeals considered that a decision contrary to its own would "involv[e] an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1). 543 F. 3d, at 335. The Sixth Circuit erred in so ruling. No decision of this Court "clearly establishe[s]" Smith's entitlement to federal-court relief. According to the Sixth Circuit, Smith had demonstrated that a Kent County prospective-juror-assignment procedure, which Smith calls "siphoning," "systematic[ally] exclu[ded]" African-Americans. Under this procedure, Kent County assigned prospective jurors first to local district courts, and, only after filling local needs, made remaining persons available to the countywide Circuit Court, which heard felony cases like Smith's. The Michigan Supreme Court, however, had rejected Smith's "siphoning" plea for lack of proof that the assignment procedure caused underrepresentation. Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. As that determination was not at all unreasonable, the Sixth Circuit had no warrant to disturb it. See §2254(d)(2). In addition to renewal of his "siphoning" argument, Smith here urges that a host of factors combined to reduce systematically the number of African-Americans appearing on Kent County jury lists, for example, the Kent County court's practice of excusing people without adequate proof of alleged hardship, and the refusal of Kent County police to enforce orders for prospective jurors to appear. Brief for Respondent 53-54. Our decisions do not address factors of the kind Smith urges. We have cautioned, however, that "[t]he fair-cross-section principle must have much leeway in application." Taylor, 419 U. S., at 537-538; see id., at 537 (Court's holding that Sixth Amendment is violated by systematic exclusion of women from jury service "does not augur or authorize the fashioning of detailed jury-selection codes by federal courts.").IA On November 7, 1991, Christopher Rumbley was shot and killed during a bar brawl in Grand Rapids, Michigan. The bar was crowded at the time of the brawl, with 200-to-300 people on the premises. All patrons of the bar were African-American. The State charged Smith with the murder in Kent County Circuit Court. Voir dire for Smith's trial took place in September 1993. The venire panel included between 60 and 100 individuals. The parties agree that, at most, three venire members were African-American. Smith unsuccessfully objected to the composition of the venire panel. Smith's case proceeded to trial before an all-white jury. The case for the prosecution turned on the identity of the man who shot Rumbley. Thirty-seven witnesses from the bar, including Smith, testified at the trial. Of those, two testified that Smith fired the gun. Five testified that the shooter was not Smith, and the remainder made no identifications of the shooter. The jury convicted Smith of second-degree murder and possession of a firearm during a felony, and the court sentenced him to life imprisonment with the possibility of parole.B On first appeal, the Michigan Court of Appeals ordered the trial court to conduct an evidentiary hearing on Smith's fair-cross-section claim. The hearing occurred in early 1998. Smith's evidence showed that Grand Rapids, the largest city in Kent County, was home to roughly 37% of Kent County's population, and to 85% of its African-American residents. Felony charges in Kent County were tried in a sole Circuit Court. Misdemeanors were prosecuted in 12 district courts, each covering a discrete geographical area. To fill the courts' venires, Kent County sent questionnaires to prospective jurors. The Circuit Court Administrator testified that about 5% of the forms were returned as undeliverable, and another 15 to 20% were not answered. App. 13a. From the pool of prospective jurors who completed questionnaires, the County granted requests for hardship exemptions, e.g., for lack of transportation or child care. Id., at 21a. Kent County then assigned nonexempt prospective jurors to their local district courts' venires. After filling the district courts' needs, the County assigned the remaining prospective jurors to the Circuit Court's panels. Id., at 20a, 22a. The month after voir dire for Smith's trial, Kent County reversed the assignment order. It did so, according to the Circuit Court Administrator, based on "[t]he belief ... that the respective districts essentially swallowed up most of the minority jurors," leaving the Circuit Court with a jury pool that "did not represent the entire county." Id., at 22a. The Jury Minority Representation Committee, its co-chair testified, held the same view concerning the impact of choosing district court jurors first and not returning unused persons to the pool available for Circuit Court selections. Id., at 64a-65a. The trial court considered two means of measuring the extent of underrepresentation of African-Americans on Circuit Court venires: "absolute disparity" and "comparative disparity." "Absolute disparity" is determined by subtracting the percentage of African-Americans in the jury pool (here, 6% in the six months leading up to Smith's trial) from the percentage of African-Americans in the local, jury-eligible population (here, 7.28%). By an absolute disparity measure, therefore, African-Americans were underrepresented by 1.28%. "Comparative disparity" is determined by dividing the absolute disparity (here, 1.28%) by the group's representation in the jury-eligible population (here, 7.28%). The quotient (here, 18%), showed that, in the six months prior to Smith's trial, African-Americans were, on average, 18% less likely, when compared to the overall jury-eligible population, to be on the jury-service list. App. to Pet. for Cert. 215a. Isolating the month Smith's jury was selected, Smith's statistics expert estimated that the comparative disparity was 34.8%. App. 181a. In the 11 months after Kent County discontinued the district-court-first assignment policy, the comparative disparity, on average, dropped from 18% to 15.1%. Id., at 102a-103a, 113a. Smith also introduced the testimony of an expert in demographics and economics, who tied the underrepresentation to social and economic factors. In Kent County, the expert explained, these forces made African-Americans less likely than whites to receive or return juror-eligibility questionnaires, and more likely to assert a hardship excuse. Id., at 79a-80a. The hearing convinced the trial court that African-Americans were underrepresented in Circuit Court venires. App. to Pet. for Cert. 210a. But Smith's evidence was insufficient, that court held, to prove that the juror-assignment order, or any other part of the jury-selection process, had systematically excluded African-Americans. Id., at 210a-212a. The court therefore rejected Smith's fair-cross-section claim.C The Michigan Court of Appeals concluded that the juror-allocation system in place at the relevant time did result in the underrepresentation of African-Americans. Id., at 182a-183a. Reversing the trial court's judgment, the intermediate appellate court ordered a new trial, with jurors selected under the Circuit-Court-first assignment order installed shortly after the voir dire in Smith's case. Ibid.; see supra, at 5. The Michigan Supreme Court, in turn, reversed the Court of Appeals' judgment, concluding that Smith "ha[d] not established a prima facie violation of the Sixth Amendment fair-cross-section requirement." Smith, 463 Mich., at 207, 615 N. W. 2d, at 4. The Michigan High Court observed, first, that this Court has specified "[no] preferred method for measuring whether representation of a distinctive group in the jury pool is fair and reasonable." Id., at 203, 615 N. W. 2d, at 2. The court then noted that lower federal courts had applied three different methods to measure fair and reasonable representation: the absolute and comparative disparity tests, described supra, at 5, and "the standard deviation test."1 Recognizing that no single test was entirely satisfactory, the Michigan Supreme Court adopted a case-by-case approach allowing consideration of all three means of measuring underrepresentation. Smith, 463 Mich., at 204, 615 N. W. 2d, at 3. Smith's statistical evidence, the court found, "failed to establish a legally significant disparity under either the absolute or comparative disparity tests." Id., at 204-205, 615 N. W. 2d, at 3. (The parties had presented no expert testimony regarding application of the standard deviation test. Id., at 204, n. 1, 615 N. W. 2d, at 3, n. 1; supra, at 5-6.) Nevertheless "grant[ing] [Smith] the benefit of the doubt on unfair and unreasonable underrepresentation," the Michigan Supreme Court ultimately determined that "he ha[d] not shown systematic exclusion." Smith, 463 Mich., at 203, 205, 615 N. W. 2d, at 2, 3. Smith's evidence, the court said, did not show "how the alleged siphoning of African American jurors to district courts affected the circuit court jury pool." Id., at 205, 615 N. W. 2d, at 3. In particular, the court observed, "[t]he record does not disclose whether the district court jury pools contained more, fewer, or approximately the same percentage of minority jurors as the circuit court jury pool." Ibid. The court also ruled that "the influence of social and economic factors on juror participation does not demonstrate a systematic exclusion." Id., at 206, 615 N. W. 2d, at 3.D In February 2003, Smith filed a habeas corpus petition in the United States District Court for the Western District of Michigan, reasserting his fair-cross-section claim. Because Smith is "in custody pursuant to the judgment of a State court," the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §2254, governed the District Court's review of his application for federal habeas corpus relief. Under the controlling provision of AEDPA, codified in §2254(d), a state prisoner's application may not be granted as to "any claim ... adjudicated ... in State court" unless the state court's adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."Applying these standards, the District Court dismissed Smith's habeas petition. App. to Pet. for Cert. 40a-42a. The Court of Appeals reversed. Where, as here, the allegedly excluded group is small, the Sixth Circuit ruled, courts should use the comparative disparity test to measure underrepresentation. 543 F. 3d, at 338. In that court's view, Smith's comparative disparity statistics sufficed "to demonstrate that the representation of African American veniremen in Kent County ... was unfair and unreasonable." Ibid. As to systematic exclusion, the Sixth Circuit, in accord with the Michigan intermediate appellate court, believed that the juror-assignment order in effect when Smith's jury was empaneled significantly reduced the number of African-Americans available for Circuit Court venires. Id., at 342. Smith was entitled to relief, the court concluded, because no important state interest supported that allocation system. Id., at 345.2 The State petitioned for certiorari attacking the Sixth Circuit's decision on two principal grounds: First, the State charged that the federal appellate court erred in adopting the comparative disparity test to determine whether a distinctive group was underrepresented in the jury pool. Pet. for Cert. ii. Second, the State urged that, in any event, "there was no ... systematic exclusion of African Americans from juries in Kent County, Michigan," id., at 25, and no warrant for the Sixth Circuit's contrary determination.3 We granted review, 557 U. S. ____ (2009), and now reverse the Sixth Circuit's judgment. According to the Sixth Circuit, the Michigan Supreme Court's rejection of Smith's Sixth Amendment plea "involved an unreasonable application o[f] clearly established Federal law, as determined by [this Court in Duren]." §2254(d)(1); see 543 F. 3d, at 345. We disagree. As explained below, our Duren decision hardly establishes — no less "clearly" so — that Smith was denied his Sixth Amendment right to an impartial jury drawn from a fair cross section of the community.II To establish a prima facie violation of the fair-cross-section requirement, this Court's pathmarking decision in Duren instructs, a defendant must prove that: (1) a group qualifying as "distinctive" (2) is not fairly and reasonably represented in jury venires, and (3) "systematic exclusion" in the jury-selection process accounts for the underrepresentation. 439 U. S., at 364; see supra, at 1-2. The defendant in Duren successfully challenged Jackson County's administration of a Missouri exemption permitting any woman to opt out of jury service. 439 U. S., at 360. The Court explained why it was plain that defendant Duren had established a prima facie case. First, women in Jackson County were both "numerous and distinct from men." Id., at 364 (quoting Taylor, 419 U. S., at 531). Second, Duren's "statistical presentation" showed gross underrepresentation: Women were over half the jury-eligible population; in stark contrast, they accounted for less than 15% of jury venires. 439 U. S., at 364-366. Duren also demonstrated systematic exclusion with particularity. He proved that women's underrepresentation was persistent — occurring in every weekly venire for almost a year — and he identified the two stages of the jury-selection process "when ... the systematic exclusion took place." Id., at 366. First, questionnaires for prospective jurors stated conspicuously that women could opt out of jury service. Less than 30% of those summoned were female, suggesting that women in large numbers claimed the exemption at the questionnaire stage. Ibid. "Moreover, at the summons stage women were ... given another opportunity to [opt out]." Id., at 366-367. And if a woman ignored the summons, she was deemed to have opted out; no further inquiry was made. Id., at 367. At this "final, venire, stage," women's representation plummeted to 14.5%. Ibid. In the Federal District Court serving the same territory, the Court noted, despite a women-only childcare exemption, women accounted for nearly 40% of those actually serving on juries. See ibid., n. 25. The "disproportionate and consistent exclusion of women from the [Jackson County] jury wheel and at the venire stage," the Court concluded, "was quite obviously due to the system by which juries were selected." Id., at 367. "[A]ppropriately tailored" hardship exemptions, the Court added, would likely survive a fair-cross-section challenge if justified by an important state interest. Id., at 370. But no such interest, the Court held, could justify Missouri's exemption for each and every woman — the altogether evident explanation for the underrepresentation. Id., at 369-370. IIIA As the Michigan Supreme Court correctly observed, see supra, at 6, neither Duren nor any other decision of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools. The courts below and the parties noted three methods employed or identified in lower federal court decisions: absolute disparity, comparative disparity, and standard deviation. See Smith, 463 Mich., at 204-205, 615 N. W. 2d, at 2-3; Brief for Petitioner 3; Brief for Respondent 26; supra, at 6-7. Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, "members of the distinctive group comp[ose] [only] a small percentage of those eligible for jury service." Smith, 463 Mich., at 203-204, 615 N. W. 2d, at 2-3. And to our knowledge, "[n]o court ... has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems." United States v. Rioux, 97 F. 3d 648, 655 (CA2 1996). On direct review, as earlier stated, the Michigan Supreme Court chose no single method "to measur[e] whether representation was fair and reasonable." Smith, 463 Mich., at 204, 615 N. W. 2d, at 3; see supra, at 7. Instead, it "adopt[ed] a case-by-case approach." Smith, 463 Mich., at 204, 615 N. W. 2d, at 3. "Provided that the parties proffer sufficient evidence," that court said, "the results of all of the tests [should be considered]." Ibid. In contrast, the Sixth Circuit declared that "[w]here the distinctive group alleged to have been underrepresented is small, as is the case here, the comparative disparity test is the more appropriate measure of underrepresentation." 543 F. 3d, at 338. Even in the absence of AEDPA's constraint, see supra, at 8, we would have no cause to take sides today on the method or methods by which underrepresentation is appropriately measured.4 Although the Michigan Supreme Court concluded that "[Smith's] statistical evidence failed to establish a legally significant disparity under either the absolute or comparative disparity tests," Smith, 463 Mich., at 204-205, 615 N. W. 2d, at 3,5 that court nevertheless gave Smith "the benefit of the doubt on underrepresentation," id., at 205, 615 N. W. 2d, at 3. It did so in order to reach the issue ultimately dispositive in Duren: To the extent underrepresentation existed, was it due to "systematic exclusion"? Ibid.; see Duren, 439 U. S., at 364.B Addressing the ground on which the Sixth Circuit rested its decision, Smith submits that the district-court-first assignment order systematically excluded African-Americans from Kent County Circuit Court venires. Brief for Respondent 46-48. But as the Michigan Supreme Court not at all unreasonably concluded, Smith, 463 Mich., at 205, 615 N. W. 2d, at 3, Smith's evidence scarcely shows that the assignment order he targets caused underrepresentation. Although the record established that some officials and others in Kent County believed that the assignment order created racial disparities, and the County reversed the order in response, supra, at 5, the belief was not substantiated by Smith's evidence. Evidence that African-Americans were underrepresented on the Circuit Court's venires in significantly higher percentages than on the Grand Rapids District Court's could have indicated that the assignment order made a critical difference. But, as the Michigan Supreme Court noted, Smith adduced no evidence to that effect. See Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. Nor did Smith address whether Grand Rapids, which had the County's largest African-American population, "ha[d] more need for jurors per capita than [any other district in Kent County]." Tr. of Oral Arg. 26; id., at 18, 37. Furthermore, Smith did not endeavor to compare the African-American representation levels in Circuit Court venires with those in the Federal District Court venires for the same region. See id., at 46-47; Duren, 439 U. S., at 367, n. 25. Smith's best evidence of systematic exclusion was offered by his statistics expert, who reported a decline in comparative underrepresentation, from 18 to 15.1%, after Kent County reversed the assignment order. See supra, at 5. This evidence — particularly in view of AEDPA's instruction, §2254(d)(2)--is insufficient to support Smith's claim that the assignment order caused the underrepresentation. As Smith's counsel recognized at oral argument, this decrease could not fairly be described as "a big change." Tr. of Oral Arg. 51; see ibid. (the drop was "a step in the right direction"). In short, Smith's evidence gave the Michigan Supreme Court little reason to conclude that the district-court-first assignment order had a significantly adverse impact on the representation of African-Americans on Circuit Court venires.C To establish systematic exclusion, Smith contends, the defendant must show only that the underrepresentation is persistent and "produced by the method or 'system' used to select [jurors]," rather than by chance. Brief for Respondent 38, 40. In this regard, Smith catalogs a laundry list of factors in addition to the alleged "siphoning" that, he urges, rank as "systematic" causes of underrepresentation of African-Americans in Kent County's jury pool. Id., at 53-54. Smith's list includes the County's practice of excusing people who merely alleged hardship or simply failed to show up for jury service, its reliance on mail notices, its failure to follow up on nonresponses, its use of residential addresses at least 15 months old, and the refusal of Kent County police to enforce court orders for the appearance of prospective jurors. Ibid. No "clearly established" precedent of this Court supports Smith's claim that he can make out a prima facie case merely by pointing to a host of factors that, individually or in combination, might contribute to a group's underrepresentation. Smith recites a sentence in our Duren opinion that, he says, placed the burden of proving causation on the State. See Tr. of Oral Arg. 33, 35. The sentence reads: "Assuming, arguendo, that the exemptions mentioned by the court below [those for persons over 65, teachers, and government workers] would justify failure to achieve a fair community cross section on jury venires, the State must demonstrate that these exemptions [rather than the women's exemption] caused the underrepresentation complained of." 439 U. S., at 368-369. That sentence appears after the Court had already assigned to Duren — and found he had carried — the burden of proving that the underrepresentation "was due to [women's] systematic exclusion in the jury-selection process." Id., at 366. The Court's comment, which Smith clipped from its context, does not concern the demonstration of a prima face case. Instead, it addresses what the State might show to rebut the defendant's prima facie case. The Michigan Supreme Court was therefore far from "unreasonable," §2254(d)(1), in concluding that Duren first and foremost required Smith himself to show that the underrepresentation complained of was "due to systematic exclusion." Id., at 364; see Smith, 463 Mich., at 205, 615 N. W. 2d, at 3. This Court, furthermore, has never "clearly established" that jury-selection-process features of the kind on Smith's list can give rise to a fair-cross-section claim. In Taylor, we "recognized broad discretion in the States" to "prescribe relevant qualifications for their jurors and to provide reasonable exemptions." 419 U. S., at 537-538. And in Duren, the Court understood that hardship exemptions resembling those Smith assails might well "survive a fair-cross-section challenge," 439 U. S., at 370.6 In sum, the Michigan Supreme Court's decision rejecting Smith's fair-cross-section claim is consistent with Duren and "involved [no] unreasonable application o[f] clearly established Federal law," §2254(d)(1).* * * For the reasons stated, the judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.MARY BERGHUIS, WARDEN, PETITIONER v. DIAPOLIS SMITHon writ of certiorari to the united states court of appeals for the sixth circuit[March 30, 2010] Justice Thomas, concurring. The text of the Sixth Amendment guarantees the right to a trial by "an impartial jury." Historically, juries did not include a sampling of persons from all levels of society or even from both sexes. See, e.g., Alschuler & Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 877 (1994) (In 1791, "[e]very state limited jury service to men; every state except Vermont restricted jury service to property owners or taxpayers; three states permitted only whites to serve; and one state, Maryland, disqualified atheists"); Taylor v. Louisiana, 419 U. S. 522, 533, n. 13 (1975) ("In this country women were disqualified by state law to sit as jurors until the end of the 19th century"). The Court has nonetheless concluded that the Sixth Amendment guarantees a defendant the right to a jury that represents "a fair cross section" of the community. Ante, at 1 (citing Taylor, supra). In my view, that conclusion rests less on the Sixth Amendment than on an "amalgamation of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment," Duren v. Missouri, 439 U. S. 357, 372 (1979) (Rehnquist, J., dissenting), and seems difficult to square with the Sixth Amendment's text and history. Accordingly, in an appropriate case I would be willing to reconsider our precedents articulating the "fair cross section" requirement. But neither party asks us to do so here, and the only question before us is whether the state court's disposition was contrary to, or an unreasonable application of, our precedents. See ante, at 23, 810; 28 U. S. C. §2254(d). I concur in the Court's answer to that question.FOOTNOTESFootnote 1 Standard deviation analysis seeks to determine the probability that the disparity between a group's jury-eligible population and the group's percentage in the qualified jury pool is attributable to random chance. See People v. Smith, 463 Mich. 199, 219-220, 615 N. W. 2d 1, 9-10 (2000) (Cavanagh, J., concurring). Footnote 2 The Sixth Circuit also found that the Michigan Supreme Court had unreasonably applied Duren v. Missouri, 439 U. S. 357 (1979), when it declared that social and economic factors could not establish systematic exclusion. 543 F. 3d, at 341-342. Because such factors disproportionately affect African-Americans, the Sixth Circuit said, Kent County's routine grants of certain hardship exemptions "produced systematic exclusion within the meaning of Duren." Ibid. The Sixth Circuit held, however, that the hardship exemptions could not establish a fair-cross-section claim because the State "has a significant interest [in] avoiding undue burdens on individuals" by allowing such excuses. Id., at 345. Footnote 3 Although the question presented by the State homes in on the proper measure for underrepresentation, it initially and more comprehensively inquires whether Smith was denied his right to a jury drawn from a fair cross section of the community. See Pet. for Cert. ii (asking "[w]hether the U. S. Court of Appeals for the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply 'clearly established' Supreme Court precedent under 28 U. S. C. §2254 on the issue of the fair cross-section requirement under Duren ... ."). We therefore address that overarching issue. Footnote 4 The State asks us to "adopt the absolute-disparity standard for measuring fair and reasonable representation" and to "requir[e] proof that the absolute disparity exceeds 10%" to make out a prima facie fair-cross-section violation. Brief for Petitioner 45-46. Under the rule the State proposes, "the Sixth Amendment offers no remedy for complete exclusion of distinct groups in communities where the population of the distinct group falls below the 10 percent threshold." Brief for Respondent 35. We need not reach that issue. Footnote 5 For similar conclusions, see, for example, United States v. Orange, 447 F. 3d 792, 798-799, and n. 7 (CA10 2006) (absolute disparity of 3.57%; comparative disparities "rang[ing] from 38.17% to 51.22%"); United States v. Royal, 174 F. 3d 1, 10 (CA1 1999) (2.97% absolute disparity; 61.1% comparative disparity); United States v. Rioux, 97 F. 3d 648, 657-658 (CA2 1996) (2.08% absolute disparity; 29% comparative disparity); State v. Gibbs, 254 Conn. 578, 591-593, 758 A. 2d 327, 337-338 (2000) (2.49% absolute disparity; 37% comparative disparity).Footnote 6 We have also never "clearly" decided, and have no need to consider here, whether the impact of social and economic factors can support a fair-cross-section claim. Compare Smith, 463 Mich., at 206, 615 N. W. 2d, at 3 ("[T]he influence of social and economic factors on juror participation does not demonstrate a systematic exclusion of [a distinctive group]."), with 543 F. 3d 326, 341 (CA6 2008) (case below) ("[T]he Sixth Amendment is concerned with social or economic factors when the particular system of selecting jurors makes such factors relevant to who is placed on the qualifying list and who is ultimately called to or excused from service on a venire panel."). |
0 | 184 So.2d 207, certiorari dismissed as improvidently granted.Richard Kanner argued the cause and filed a brief for petitioner.James T. Carlisle, Assistant Attorney General of Florida, argued the cause for respondent. With him on the brief was Earl Faircloth, Attorney General.PER CURIAM.The writ is dismissed as improvidently granted without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court.MR. JUSTICE DOUGLAS, dissenting.The question presented here is whether Florida has deprived petitioner of equal protection or due process of law by summarily dismissing his collateral attack on a state criminal conviction without conducting an evidentiary hearing. Because of the increasing tide of habeas corpus petitions brought by prisoners (see Price v. Johnston, ) - many of whom find they must turn to federal courts to obtain a hearing - the question is of considerable importance.I assume that the Federal Constitution does not compel the States to provide any remedy for collateral attack of criminal convictions. Cf. Townsend v. Sain, , n. 9; Griffin v. Illinois, . But when a State makes available a means for review, it is held to a "constitutional requirement of substantial equality and fair process." Anders v. California, . It may not discriminate arbitrarily between persons applying for relief (e. g., Burns v. Ohio, ), and it must adhere to the requirements of due process. Swenson v. Bosler, . Though these rules were primarily developed with reference to appellate review, we have held them applicable with equal force to state post-conviction proceedings. Smith v. Bennett, .By Rule 1 of the Florida Rules of Criminal Procedure, Florida has provided a means of collateral attack.In his application petitioner alleged that extensive pretrial publicity - including television broadcasts of confessions given by him - prevented selection of a fair and impartial jury. Petitioner further alleged that he asked his trial counsel to request a change of venue, but counsel refused to do so. The Florida District Court of Appeal held that no evidentiary hearing was necessary because venue objections could only be raised at trial and because venue was res judicata under the judgment in a prior collateral attack by petitioner (see Whitney v. Cochran, 152 So.2d 727, 730 (Fla.)) that representation by trial counsel was adequate and not a farce or sham.But this characterization and disposition of petitioner's allegations avoid the basic issue presented. Under Entsminger v. Iowa, , a defendant who specifically asked his attorney to take a plenary appeal was denied a constitutional right when the attorney took only a truncated appeal. The allegations of petitioner here clearly constitute a prima facie case of violation of this principle.My Brother HARLAN characterizes this crime as "a particularly brutal murder" - and so it was. But that does not alter the underlying constitutional question whether the atmosphere of the community had been so saturated by adverse publicity as to deprive the state trial of the constitutional requirement of due process. Sheppard v. Maxwell, . My Brother HARLAN states that from this record it is "inescapable" that petitioner's trial counsel "deliberately" chose to try the case before a jury that may have been exposed to petitioner's televised confessions. But with all respect, that is no answer to the present constitutional claim. Until we know the extent and degree of saturation of the public mind with the TV films, it is impossible to say whether or not counsel's failure to obtain a change of venue was harmless error under the ruling of Chapman v. California, . Far more than mere trial tactics and strategy is involved. In such a case the denial of the defendant's rights is not cured by outstanding representation by counsel during the balance of proceedings. It is no answer for the Florida courts to say counsel never moved at trial for a transfer to a county not saturated with pretrial publicity; for this failure of counsel is the very heart of the wrong allegedly done to petitioner. Nor are res judicata principles applicable, for as I read Whitney v. Cochran the Entsminger right-to-counsel issue was neither raised nor decided.I would vacate the judgment and remand to the Florida courts so that the State may give petitioner the evidentiary hearing to which he is entitled. We needlessly burden the federal regime* when we do not insist that Florida, which has provided a remedy, have the evidentiary hearing which will determine the nature and extent of the pretrial publicity and whether it was trivial or potentially damaging.[Footnote *] Habeas corpus petitions and petitions under 28 U.S.C. 2255 in the federal courts increased from 598 in 1941 to 2,314 in 1961 (Annual Rep. Adm. Off. U.S. Courts 1964, p. 155) and to 9,697 in the 1967 fiscal year. Annual Rep. 1967, p. II-56. Of these, 5,948 were habeas corpus cases brought by state prisoners. Ibid. MR. JUSTICE HARLAN, whom MR. JUSTICE BLACK joins, dissenting.I would affirm the judgment of the state court. I can find no sound basis for this Court's not reaching the merits of the questions brought here for review, even though I believe that the writ should not have issued in the first place. Nor do I believe that a federal habeas corpus proceeding should be encouraged, which is the implicit effect of the Court's "without prejudice" dismissal, or, as my Brother DOUGLAS suggests, that the case should be remanded to the state court for a hearing.Petitioner was convicted of a particularly brutal murder, committed in the course of an armed robbery. At trial, with advice of counsel, he entered into a written stipulation conceded to be the virtual equivalent of a guilty plea, confessing the murder. Consequently, the only question argued to the jury by counsel was whether it would recommend mercy; the jury declined to do so, and a sentence of death was imposed.Prior to his trial, petitioner had confessed to five other homicides and one attempted homicide. These confessions were not referred to at trial. They were, however, allegedly given wide publicity by television and radio stations in the area where trial occurred. Contending that this publicity had deprived him of the right to trial before an impartial jury, petitioner brought this collateral proceeding in the state courts.The Florida District Court of Appeal, rejecting the argument that petitioner's claim was foreclosed by his failure to raise it in prior proceedings, held that as a matter of state law the principle of res judicata is applicable, in criminal cases, "only to those items actually raised in the prior proceedings." Whitney v. State, 184 So.2d 207, at 209 (Fla.). (Emphasis in original.) On the merits the court rejected petitioner's claim, relying heavily on the fact that trial counsel had made no motion for a change of venue, and had not even undertaken to exercise all of his peremptory challenges. Cf. Beck v. Washington, . The record also reveals that counsel conducted a vigorous voir dire during which, although for obvious reasons no mention of other crimes was made, each juror represented that he could and would judge the case solely on the basis of what was presented in court. The conclusion that trial counsel deliberately chose to risk the mercy of a local jury, rather than court more imponderable hazards elsewhere, seems inescapable.After trial, new counsel sought to depict this perfectly understandable piece of strategy as but the product of incompetence so gross as to give rise to a constitutional claim that the petitioner was deprived of the effective assistance of counsel. In light of the record, and particularly defense counsel's extensive summation, which clearly evinces an effort to make the best of a hopeless case by trying to save defendant from the death penalty, the claim now made is little short of frivolous.I can find in this straightforward train of events no room for questioning the validity of this state conviction from a federal constitutional standpoint, or for further prolonging the case. |
1 | Tennessee closes its registration books 30 days before an election, but requires residence in the State for one year and in the county for three months as prerequisites for registration to vote. Appellee challenged the constitutionality of the durational residence requirements, and a three-judge District Court held them unconstitutional on the grounds that they impermissibly interfered with the right to vote and created a "suspect" classification penalizing some Tennessee residents because of recent interstate movement. Tennessee asserts that the requirements are needed to insure the purity of the ballot box and to have knowledgeable voters. Held: The durational residence requirements are violative of the Equal Protection Clause of the Fourteenth Amendment, as they are not necessary to further a compelling state interest. Pp. 335-360. (a) Since the requirements deny some citizens the right to vote, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Kramer v. Union Free School District, (emphasis added). Pp. 336-337. (b) Absent a compelling state interest, Tennessee may not burden the right to travel by penalizing those bona fide residents who have recently traveled from one jurisdiction to another. Pp. 338-342. (c) A period of 30 days appears to be ample to complete whatever administrative tasks are needed to prevent fraud and insure the purity of the ballot box. Pp. 345-349. (d) Since there are adequate means of ascertaining bona fide residence on an individualized basis, the State may not conclusively presume nonresidence from failure to satisfy the waiting-period requirements of durational residence laws. Pp. 349-354. (e) Tennessee has not established a sufficient relationship between its interest in an informed electorate and the fixed durational residence requirements. Pp. 354-360. 337 F. Supp. 323, affirmed. MARSHALL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and WHITE, JJ., joined. BLACKMUN, J., filed an opinion concurring in the result, post, p. 360. BURGER, C. J., filed a dissenting opinion, post, p. 363. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.Robert H. Roberts, Assistant Attorney General of Tennessee, argued the cause for appellants. With him on the brief were David M. Pack, Attorney General, and Thomas E. Fox, Deputy Attorney General.James F. Blumstein, pro se, argued the cause for appellee. With him on the brief were Charles Morgan, Jr., and Norman Siegel.Henry P. Sailer and William A. Dobrovir filed a brief for Common Cause as amicus curiae urging affirmance.MR. JUSTICE MARSHALL delivered the opinion of the Court.Various Tennessee public officials (hereinafter Tennessee) appeal from a decision by a three-judge federal court holding that Tennessee's durational residence requirements for voting violate the Equal Protection Clause of the United States Constitution. The issue arises in a class action for declaratory and injunctive relief brought by appellee James Blumstein. Blumstein moved to Tennessee on June 12, 1970, to begin employment as an assistant professor of law at Vanderbilt University in Nashville. With an eye toward voting in the upcoming August and November elections, he attempted to register to vote on July 1, 1970. The county registrar refused to register him, on the ground that Tennessee law authorizes the registration of only those persons who, at the time of the next election, will have been residents of the State for a year and residents of the county for three months.After exhausting state administrative remedies, Blumstein brought this action challenging these residence requirements on federal constitutional grounds.1 A three-judge court, convened pursuant to 28 U.S.C. 2281, 2284, concluded that Tennessee's durational residence requirements were unconstitutional (1) because they impermissibly interfered with the right to vote and (2) because they created a "suspect" classification penalizing some Tennessee residents because of recent interstate movement.2 337 F. Supp. 323 (MD Tenn. 1970). We noted probable jurisdiction, . For the reasons that follow, we affirm the decision below.3 IThe subject of this lawsuit is the durational residence requirement. Appellee does not challenge Tennessee's power to restrict the vote to bona fide Tennessee residents. Nor has Tennessee ever disputed that appellee was a bona fide resident of the State and county when he attempted to register.4 But Tennessee insists that, in addition to being a resident, a would-be voter must have been a resident for a year in the State and three months in the county. It is this additional durational residence requirement that appellee challenges.Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote.5 The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. Cf. Williams v. Rhodes, . In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved.6 First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements. ADurational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of "`a fundamental political right, ... preservative of all rights.'" Reynolds v. Sims, . There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, , 426 (1970); Kramer v. Union Free School District, ; Cipriano v. City of Houma, ; Harper v. Virginia Board of Elections, ; Carrington v. Rash, ; Reynolds v. Sims, supra. This "equal right to vote," Evans v. Cornman, supra, at 426, is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. See, e. g., Carrington v. Rash, supra, at 91; Oregon v. Mitchell, (opinion of DOUGLAS, J.), 241 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 294 (opinion of STEWART, J., concurring and dissenting, with whom BURGER, C. J., and BLACKMUN, J., joined). But, as a general matter, "before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny." Evans v. Cornman, supra, at 422; see Bullock v. Carter, ante, p. 134, at 143. Tennessee urges that this case is controlled by Drueding v. Devlin, . Drueding was a decision upholding Maryland's durational residence requirements. The District Court tested those requirements by the equal protection standard applied to ordinary state regulations: whether the exclusions are reasonably related to a permissible state interest. 234 F. Supp. 721, 724-725 (Md. 1964). We summarily affirmed per curiam without the benefit of argument. But if it was not clear then, it is certainly clear now that a more exacting test is required for any statute that "place[s] a condition on the exercise of the right to vote." Bullock v. Carter, supra, at 143. This development in the law culminated in Kramer v. Union Free School District, supra. There we canvassed in detail the reasons for strict review of statutes distributing the franchise, 395 U.S., at 626-630, noting inter alia that such statutes "constitute the foundation of our representative society." We concluded that if a challenged statute grants the right to vote to some citizens and denies the franchise to others, "the Court must determine whether the exclusions are necessary to promote a compelling state interest." Id., at 627 (emphasis added); Cipriano v. City of Houma, supra, at 704; City of Phoenix v. Kolodziejski, , 209 (1970). Cf. Harper v. Virginia Board of Elections, supra, at 670. This is the test we apply here.7 BThis exacting test is appropriate for another reason, never considered in Drueding: Tennessee's durational residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel."[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution." United States v. Guest, . See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, ; Kent v. Dulles, ; Shapiro v. Thompson, , 634 (1969); Oregon v. Mitchell, 400 U.S., at 237 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.), 285-286 (STEWART, J., concurring and dissenting, with whom BURGER, C. J., and BLACKMUN, J., joined). And it is clear that the freedom to travel includes the "freedom to enter and abide in any State in the Union," id., at 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although in Shapiro we specifically did not decide whether durational residence requirements could be used to determine voting eligibility, id., at 638 n. 21, we concluded that since the right to travel was a constitutionally protected right, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Id., at 634. This compelling-state-interest test was also adopted in the separate concurrence of MR. JUSTICE STEWART. Preceded by a long line of cases recognizing the constitutional right to travel, and repeatedly reaffirmed in the face of attempts to disregard it, see Wyman v. Bowens, , and Wyman v. Lopez, , Shapiro and the compelling-state-interest test it articulates control this case. Tennessee attempts to distinguish Shapiro by urging that "the vice of the welfare statute in Shapiro ... was its objective to deter interstate travel." Brief for Appellants 13. In Tennessee's view, the compelling-state-interest test is appropriate only where there is "some evidence to indicate a deterrence of or infringement on the right to travel ... ." Ibid. Thus, Tennessee seeks to avoid the clear command of Shapiro by arguing that durational residence requirements for voting neither seek to nor actually do deter such travel. In essence, Tennessee argues that the right to travel is not abridged here in any constitutionally relevant sense.This view represents a fundamental misunderstanding of the law.8 It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other "right to travel" cases in this Court always relied on the presence of actual deterrence.9 In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by "any classification which serves to penalize the exercise of that right [to travel] ... ." Id., at 634 (emphasis added); see id., at 638 n. 21.10 While noting the frank legislative purpose to deter migration by the poor, and speculating that "[a]n indigent who desires to migrate ... will doubtless hesitate if he knows that he must risk" the loss of benefits, id., at 629, the majority found no need to dispute the "evidence that few welfare recipients have in fact been deterred [from moving] by residence requirements." Id., at 650 (Warren, C. J., dissenting); see also id., at 671-672 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that because a durational residence requirement for voting "operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration ..., [it] may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest." Oregon v. Mitchell, 400 U.S., at 238 (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.) (emphasis added).Of course, it is true that the two individual interests affected by Tennessee's durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differences are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere: "It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution ... `Constitutional rights would be of little value if they could be ... indirectly denied'... ." Harman v. Forssenius, .11 See also Garrity v. New Jersey, , and cases cited therein; Spevack v. Klein, . The right to travel is an "unconditional personal right," a right whose exercise may not be conditioned. Shapiro v. Thompson, 394 U.S., at 643 (STEWART, J., concurring) (emphasis added); Oregon v. Mitchell, supra, at 292 (STEWART, J., concurring and dissenting, with whom BURGER, C. J., and BLACKMUN, J., joined). Durational residence laws impermissibly condition and penalize the right to travel by imposing their prohibitions on only those persons who have recently exercised that right.12 In the present case, such laws force a person who wishes to travel and change residences to choose between travel and the basic right to vote. Cf. United States v. Jackson, . Absent a compelling state interest, a State may not burden the right to travel in this way.13 CIn sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are "necessary to promote a compelling governmental interest." Shapiro v. Thompson, supra, at 634 (first emphasis added); Kramer v. Union Free School District, 395 U.S., at 627. Thus phrased, the constitutional question may sound like a mathematical formula. But legal "tests" do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with "precision," NAACP v. Button, ; United States v. Robel, , and must be "tailored" to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose "less drastic means." Shelton v. Tucker, .IIWe turn, then, to the question of whether the State has shown that durational residence requirements are needed to further a sufficiently substantial state interest. We emphasize again the difference between bona fide residence requirements and durational residence requirements. We have in the past noted approvingly that the States have the power to require that voters be bona fide residents of the relevant political subdivision. E. g., Evans v. Cornman, 398 U.S., at 422; Kramer v. Union Free School District, supra, at 625; Carrington v. Rash, 380 U.S., at 91; Pope v. Williams, .14 An appropriately defined and uniformly applied requirement of bona fide residence may be necessary to preserve the basic conception of a political community, and therefore could withstand close constitutional scrutiny.15 But durational residence requirements, representing a separate voting qualification imposed on bona fide residents, must be separately tested by the stringent standard. Cf. Shapiro v. Thompson, supra, at 636.It is worth noting at the outset that Congress has, in a somewhat different context, addressed the question whether durational residence laws further compelling state interests. In 202 of the Voting Rights Act of 1965, added by the Voting Rights Act Amendments of 1970, Congress outlawed state durational residence requirements for presidential and vice-presidential elections, and prohibited the States from closing registration more than 30 days before such elections. 42 U.S.C. 1973aa-1. In doing so, it made a specific finding that durational residence requirements and more restrictive registration practices do "not bear a reasonable relationship to any compelling State interest in the conduct of presidential elections." 42 U.S.C. 1973aa-1 (a) (6). We upheld this portion of the Voting Rights Act in Oregon v. Mitchell, supra. In our present case, of course, we deal with congressional, state, and local elections, in which the State's interests are arguably somewhat different; and, in addition, our function is not merely to determine whether there was a reasonable basis for Congress' findings. However, the congressional finding which forms the basis for the Federal Act is a useful background for the discussion that follows. Tennessee tenders "two basic purposes" served by its durational residence requirements: "(1) INSURE PURITY OF BALLOT BOX - Protection against fraud through colonization and inability to identify persons offering to vote, and "(2) KNOWLEDGEABLE VOTER - Afford some surety that the voter has, in fact, become a member of the community and that as such, he has a common interest in all matters pertaining to its government and is, therefore, more likely to exercise his right more intelligently." Brief for Appellants 15, citing 18 Am. Jur., Elections, 56, p. 217. We consider each in turn.APreservation of the "purity of the ballot box" is a formidable-sounding state interest. The impurities feared, variously called "dual voting" and "colonization," all involve voting by nonresidents, either singly or in groups. The main concern is that nonresidents will temporarily invade the State or county, falsely swear that they are residents to become eligible to vote, and, by voting, allow a candidate to win by fraud. Surely the prevention of such fraud is a legitimate and compelling government goal. But it is impossible to view durational residence requirements as necessary to achieve that state interest.Preventing fraud, the asserted evil that justifies state lawmaking, means keeping nonresidents from voting. But, by definition, a durational residence law bars newly arrived residents from the franchise along with non-residents. The State argues that such sweeping laws are necessary to prevent fraud because they are needed to identify bona fide residents. This contention is particularly unconvincing in light of Tennessee's total statutory scheme for regulating the franchise.Durational residence laws may once have been necessary to prevent a fraudulent evasion of state voter standards, but today in Tennessee, as in most other States,16 this purpose is served by a system of voter registration. Tenn. Code Ann. 2-301 et seq. (1955 and Supp. 1970); see State v. Weaver, 122 Tenn. 198, 122 S. W. 465 (1909). Given this system, the record is totally devoid of any evidence that durational residence requirements are in fact necessary to identify bona fide residents. The qualifications of the would-be voter in Tennessee are determined when he registers to vote, which he may do until 30 days before the election. Tenn. Code Ann. 2-304. His qualifications - including bona fide residence - are established then by oath. Tenn. Code Ann. 2-309. There is no indication in the record that Tennessee routinely goes behind the would-be voter's oath to determine his qualifications. Since false swearing is no obstacle to one intent on fraud, the existence of burdensome voting qualifications like durational residence requirements cannot prevent corrupt nonresidents from fraudulently registering and voting. As long as the State relies on the oath-swearing system to establish qualifications, a durational residence requirement adds nothing to a simple residence requirement in the effort to stop fraud. The nonresident intent on committing election fraud will as quickly and effectively swear that he has been a resident for the requisite period of time as he would swear that he was simply a resident. Indeed, the durational residence requirement becomes an effective voting obstacle only to residents who tell the truth and have no fraudulent purposes.Moreover, to the extent that the State makes an enforcement effort after the oath is sworn, it is not clear what role the durational residence requirement could play in protecting against fraud. The State closes the registration books 30 days before an election to give officials an opportunity to prepare for the election. Before the books close, anyone may register who claims that he will meet the durational residence requirement at the time of the next election. Although Tennessee argues that this 30-day period between registration and election does not give the State enough time to verify this claim of bona fide residence, we do not see the relevance of that position to this case. As long as the State permits registration up to 30 days before an election, a lengthy durational residence requirement does not increase the amount of time the State has in which to carry out an investigation into the sworn claim by the would-be voter that he is in fact a resident.Even if durational residence requirements imposed, in practice, a pre-election waiting period that gave voting officials three months or a year in which to confirm the bona fides of residence, Tennessee would not have demonstrated that these waiting periods were necessary. At the outset, the State is faced with the fact that it must defend two separate waiting periods of different lengths. It is impossible to see how both could be "necessary" to fulfill the pertinent state objective. If the State itself has determined that a three-month period is enough time in which to confirm bona fide residence in the State and county, obviously a one-year period cannot also be justified as "necessary" to achieve the same purpose.17 Beyond that, the job of detecting nonresidents from among persons who have registered is a relatively simple one. It hardly justifies prohibiting all newcomers from voting for even three months. To prevent dual voting, state voting officials simply have to cross-check lists of new registrants with their former jurisdictions. See Comment, Residence Requirements for Voting in Presidential Elections, 37 U. Chi. L. Rev. 359, 364 and n. 34, 374 (1970); cf. Shapiro v. Thompson, 394 U.S., at 637. Objective information tendered as relevant to the question of bona fide residence under Tennessee law - places of dwelling, occupation, car registration, driver's license, property owned, etc.18 - is easy to doublecheck, especially in light of modern communications. Tennessee itself concedes that "[i]t might well be that these purposes can be achieved under requirements of shorter duration than that imposed by the State of Tennessee ... ." Brief for Appellants 10. Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud - and a year, or three months, too much. This was the judgment of Congress in the context of presidential elections.19 And, on the basis of the statutory scheme before us, it is almost surely the judgment of the Tennessee lawmakers as well. As the court below concluded, the cutoff point for registration 30 days before an election"reflects the judgment of the Tennessee Legislature that thirty days is an adequate period in which Tennessee's election officials can effect whatever measures may be necessary, in each particular case confronting them, to insure purity of the ballot and prevent dual registration and dual voting." 337 F. Supp., at 330. It has been argued that durational residence requirements are permissible because a person who has satisfied the waiting-period requirements is conclusively presumed to be a bona fide resident. In other words, durational residence requirements are justified because they create an administratively useful conclusive presumption that recent arrivals are not residents and are therefore properly barred from the franchise.20 This presumption, so the argument runs, also prevents fraud, for few candidates will be able to induce migration for the purpose of voting if fraudulent voters are required to remain in the false locale for three months or a year in order to vote on election day.21 In Carrington v. Rash, , this Court considered and rejected a similar kind of argument in support of a similar kind of conclusive presumption. There, the State argued that it was difficult to tell whether persons moving to Texas while in the military service were in fact bona fide residents. Thus, the State said, the administrative convenience of avoiding difficult factual determinations justified a blanket exclusion of all servicemen stationed in Texas. The presumption created there was conclusive - "`incapable of being overcome by proof of the most positive character.'" Id., at 96, citing Heiner v. Donnan, . The Court rejected this "conclusive presumption" approach as violative of the Equal Protection Clause. While many servicemen in Texas were not bona fide residents, and therefore properly ineligible to vote, many servicemen clearly were bona fide residents. Since "more precise tests" were available "to winnow successfully from the ranks ... those whose residence in the State is bona fide," conclusive presumptions were impermissible in light of the individual interests affected. Id., at 95. "States may not casually deprive a class of individuals of the vote because of some remote administrative benefit to the State." Id., at 96.Carrington sufficiently disposes of this defense of durational residence requirements. The State's legitimate purpose is to determine whether certain persons in the community are bona fide residents. A durational residence requirement creates a classification that may, in a crude way, exclude nonresidents from that group. But it also excludes many residents. Given the State's legitimate purpose and the individual interests that are affected, the classification is all too imprecise. See supra, at 343. In general, it is not very difficult for Tennessee to determine on an individualized basis whether one recently arrived in the community is in fact a resident, although of course there will always be difficult cases. Tennessee has defined a test for bona fide residence, and appears prepared to apply it on an individualized basis in various legal contexts.22 That test could easily be applied to new arrivals. Furthermore, if it is unlikely that would-be fraudulent voters would remain in a false locale for the lengthy period imposed by durational residence requirements, it is just as unlikely that they would collect such objective indicia of bona fide residence as a dwelling, car registration, or driver's license. In spite of these things, the question of bona fide residence is settled for new arrivals by conclusive presumption, not by individualized inquiry. Cf. Carrington v. Rash, supra, at 95-96. Thus, it has always been undisputed that appellee Blumstein is himself a bona fide resident of Tennessee within the ordinary state definition of residence. But since Tennessee's presumption from failure to meet the durational residence requirements is conclusive, a showing of actual bona fide residence is irrelevant, even though such a showing would fully serve the State's purposes embodied in the presumption and would achieve those purposes with far less drastic impact on constitutionally protected interests.23 The Equal Protection Clause places a limit on government by classification, and that limit has been exceeded here. Cf. Shapiro v. Thompson, 394 U.S., at 636; Harman v. Forssenius, 380 U.S., at 542-543; Carrington v. Rash, supra, at 95-96; Skinner v. Oklahoma, . Our conclusion that the waiting period is not the least restrictive means necessary for preventing fraud is bolstered by the recognition that Tennessee has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared.24 At least six separate sections of the Tennessee Code define offenses to deal with voter fraud. For example, Tenn. Code Ann. 2-324 makes it a crime "for any person to register or to have his name registered as a qualified voter ... when he is not entitled to be so registered ... or to procure or induce any other person to register or be registered as such ... ."25 In addition to the various criminal penalties, Tennessee permits the bona fides of a voter to be challenged on election day. Tenn. Code Ann. 2-1309 et seq. (1955 and Supp. 1970). Where a State has available such remedial action to supplement its voter registration system, it can hardly argue that broadly imposed political disabilities such as durational residence requirements are needed to deal with the evils of fraud. Now that the Federal Voting Rights Act abolishes those residence requirements as a precondition for voting in presidential and vice-presidential elections, 42 U.S.C. 1973aa-1, it is clear that the States will have to resort to other devices available to prevent nonresidents from voting. Especially since every State must live with this new federal statute, it is impossible to believe that durational residence requirements are necessary to meet the State's goal of stopping fraud.26 BThe argument that durational residence requirements further the goal of having "knowledgeable voters" appears to involve three separate claims. The first is that such requirements "afford some surety that the voter has, in fact, become a member of the community." But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community. But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than longtime residents.The second branch of the "knowledgeable voters" justification is that durational residence requirements assure that the voter "has a common interest in all matters pertaining to [the community's] government ... ." By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint. This is precisely the sort of argument this Court has repeatedly rejected. In Carrington v. Rash, for example, the State argued that military men newly moved into Texas might not have local interests sufficiently in mind, and therefore could be excluded from voting in state elections. This Court replied: "But if they are in fact residents, ... they, as all other qualified residents, have a right to an equal opportunity for political representation... . `Fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." 380 U.S., at 94. See 42 U.S.C. 1973aa-1 (a) (4).Similarly here, Tennessee's hopes for voters with a "common interest in all matters pertaining to [the community's] government" is impermissible.27 To paraphrase what we said elsewhere, "All too often, lack of a [`common interest'] might mean no more than a different interest." Evans v. Cornman, 398 U.S., at 423. "[D]ifferences of opinion" may not be the basis for excluding any group or person from the franchise. Cipriano v. City of Houma, 395 U.S., at 705-706. "[T]he fact that newly arrived [Tennesseeans] may have a more national outlook than longtime residents, or even may retain a viewpoint characteristic of the region from which they have come, is a constitutionally impermissible reason for depriving them of their chance to influence the electoral vote of their new home State." Hall v. Beals, (dissenting opinion).28 Finally, the State urges that a longtime resident is "more likely to exercise his right [to vote] more intelligently." To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues. In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues involved in the congressional, state, and local elections, and therefore can be barred from the franchise. We note that the criterion of "intelligent" voting is an elusive one, and susceptible of abuse. But without deciding as a general matter the extent to which a State can bar less knowledgeable or intelligent citizens from the franchise, cf. Evans v. Cornman, 398 U.S., at 422; Kramer v. Union Free School District, 395 U.S., at 632; Cipriano v. City of Houma, 395 U.S., at 705,29 we conclude that durational residence requirements cannot be justified on this basis.In Kramer v. Union Free School District, supra, we held that the Equal Protection Clause prohibited New York State from limiting the vote in school-district elections to parents of school children and to property owners. The State claimed that since nonparents would be "less informed" about school affairs than parents, id., at 631, the State could properly exclude the class of nonparents in order to limit the franchise to the more "interested" group of residents. We rejected that position, concluding that a "close scrutiny of [the classification] demonstrates that [it does] not accomplish this purpose with sufficient precision ... ." Id., at 632. That scrutiny revealed that the classification excluding nonparents from the franchise kept many persons from voting who were as substantially interested as those allowed to vote; given this, the classification was insufficiently "tailored" to achieve the articulated state goal. Ibid. See also Cipriano v. City of Houma, supra, at 706.Similarly, the durational residence requirements in this case founder because of their crudeness as a device for achieving the articulated state goal of assuring the knowledgeable exercise of the franchise. The classifications created by durational residence requirements obviously permit any longtime resident to vote regardless of his knowledge of the issues - and obviously many longtime residents do not have any. On the other hand, the classifications bar from the franchise many other, admittedly new, residents who have become at least minimally, and often fully, informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving are likely to be those citizens, such as appellee, who make it a point to be informed and knowledgeable about the issues. Given modern communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election,30 the State cannot seriously maintain that it is "necessary" to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections. There is simply nothing in the record to support the conclusive presumption that residents who have lived in the State for less than a year and their county for less than three months are uninformed about elections. Cf. Shapiro v. Thompson, 394 U.S., at 631. These durational residence requirements crudely exclude large numbers of fully qualified people. Especially since Tennessee creates a waiting period by closing registration books 30 days before an election, there can be no basis for arguing that any durational residence requirement is also needed to assure knowledgeability.It is pertinent to note that Tennessee has never made an attempt to further its alleged interest in an informed electorate in a universally applicable way. Knowledge or competence has never been a criterion for participation in Tennessee's electoral process for longtime residents. Indeed, the State specifically provides for voting by various types of absentee persons.31 These provisions permit many longtime residents who leave the county or State to participate in a constituency in which they have only the slightest political interest, and from whose political debates they are likely to be cut off. That the State specifically permits such voting is not consistent with its claimed compelling interest in intelligent, informed use of the ballot. If the State seeks to assure intelligent use of the ballot, it may not try to serve this interest only with respect to new arrivals. Cf. Shapiro v. Thompson, supra, at 637-638.It may well be true that new residents as a group know less about state and local issues than older residents; and it is surely true that durational residence requirements will exclude some people from voting who are totally uninformed about election matters. But as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too crude. They exclude too many people who should not, and need not, be excluded. They represent a requirement of knowledge unfairly imposed on only some citizens. We are aware that classifications are always imprecise. By requiring classifications to be tailored to their purpose, we do not secretly require the impossible. Here, there is simply too attenuated a relationship between the state interest in an informed electorate and the fixed requirement that voters must have been residents in the State for a year and the county for three months. Given the exacting standard of precision we require of statutes affecting constitutional rights, we cannot say that durational residence requirements are necessary to further a compelling state interest.IIIConcluding that Tennessee has not offered an adequate justification for its durational residence laws, we affirm the judgment of the court below. Affirmed.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. |
6 | Section 7 of the National Labor Relations Act provides that employees shall have the right to join or assist labor organizations, to bargain collectively, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The collective-bargaining agreement between respondent and the union representing its truckdrivers provides that respondent shall not require employees to operate any vehicle that is not in safe operating condition, and that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified." One of respondent's employees (James Brown) was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. After the union declined to process Brown's grievance under the bargaining agreement, he filed an unfair labor practice charge with the National Labor Relations Board (NLRB), challenging his discharge. An Administrative Law Judge concluded that, even though Brown acted alone in asserting a contractual right, his refusal to operate the truck constituted "concerted activit[y]" protected by 7, and that respondent had therefore committed an unfair labor practice in discharging him. The NLRB adopted the Administrative Law Judge's findings and conclusions and ordered Brown's reinstatement with backpay, applying its longstanding "Interboro doctrine," which was based on the conclusions that an individual's reasonable and honest assertion of a right contained in a collective-bargaining agreement is an extension of the concerted action that produced the agreement, and that the assertion of such a right affects the rights of all employees covered by the agreement. However, the Court of Appeals denied enforcement of the NLRB's order, finding that Brown's refusal to drive the truck was an action taken solely on his own behalf and thus was not a concerted activity within 7's meaning.Held: 1. The NLRB's Interboro doctrine is a reasonable interpretation of the Act. Pp. 829-839. (a) The language of 7 does not confine itself to situations where two or more employees are working together at the same time and the same place toward a common goal, or to situations where a lone employee intends to induce group activity or acts as a representative of at least one other employee. The invocation of a right rooted in a collective-bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. The Interboro doctrine is entirely consistent with the Act's purposes, which include the encouragement of collective bargaining and other practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions. Moreover, 7's general history reveals no inconsistency between the Interboro doctrine and congressional intent to equalize the bargaining power of management and labor. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the NLRB's judgment that the employee is engaged in concerted activity. Pp. 830-837. (b) The fact that an activity is concerted does not necessarily mean that an employee may engage in the activity with impunity. If an employee engages in concerted activity in a manner that is overly abusive or violative of his collective-bargaining agreement, his actions would be unprotected. P. 837. (c) There is no merit to the argument that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair labor practice claim. An employee who purposefully follows this route would run the risk that the NLRB would find his actions concerted but nonetheless unprotected. More importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the NLRB may defer to that process. Pp. 837-839. 2. The NLRB reasonably concluded that Brown's honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks, even though he did not explicitly refer to the collective-bargaining agreement when he refused to drive the truck, constituted concerted activity within the meaning of 7. As long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicated, and the complaint in fact refers to a reasonably perceived violation of the collective-bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. Respondent's argument that the NLRB erred in finding Brown's action concerted based only on Brown's reasonable and honest belief that the truck was unsafe, because the bargaining agreement required that the truck be objectively unsafe, confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The latter question should be considered on remand. Pp. 839-841. 683 F.2d 1005, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL and REHNQUIST, JJ., joined, post, p. 841.Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Wallace, Carter G. Phillips, Linda Sher, and Elinor Hadley Stillman.Robert P. Ufer argued the cause for respondent. With him on the brief were Thomas G. Kienbaum and Theodore R. Opperwall.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by J. Albert Woll, Laurence Gold, and George Kaufmann; and for Teamsters for a Democratic Union by Paul Alan Levy and Alan B. Morrison. Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Edward B. Miller and Stephen A. Bokat; for the Legal Foundation of America by David Crump; and for Roadway Express, Inc., by Michael C. Towers and Mark E. Edwards.JUSTICE BRENNAN delivered the opinion of the Court.James Brown, a truckdriver employed by respondent, was discharged when he refused to drive a truck that he honestly and reasonably believed to be unsafe because of faulty brakes. Article XXI of the collective-bargaining agreement between respondent and Local 247 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, which covered Brown, provides:"The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety appliances prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified."1 The question to be decided is whether Brown's honest and reasonable assertion of his right to be free of the obligation to drive unsafe trucks constituted "concerted activit[y]" within the meaning of 7 of the National Labor Relations Act (NLRA or Act), 61 Stat. 140, 29 U.S.C. 157.2 The National Labor Relations Board (NLRB or Board) held that Brown's refusal was concerted activity within 7, and that his discharge was, therefore, an unfair labor practice under 8(a)(1) of the Act, 61 Stat. 140, 29 U.S.C. 158(a).3 256 N. L. R. B. 451 (1981). The Court of Appeals disagreed and declined enforcement. 683 F.2d 1005 (CA6 1982). At least three other Courts of Appeals, however, have accepted the Board's interpretation of "concerted activities" as including the assertion by an individual employee of a right grounded in a collective-bargaining agreement.4 We granted certiorari to resolve the conflict, , and now reverse.IThe facts are not in dispute in the current posture of this case.5 Respondent, City Disposal Systems, Inc. (City Disposal), hauls garbage for the city of Detroit. Under the collective-bargaining agreement with Local Union No. 247, respondent's truckdrivers haul garbage from Detroit to a landfill about 37 miles away. Each driver is assigned to operate a particular truck, which he or she operates each day of work, unless that truck is in disrepair.James Brown was assigned to truck No. 245. On Saturday, May 12, 1979, Brown observed that a fellow driver had difficulty with the brakes of another truck, truck No. 244. As a result of the brake problem, truck No. 244 nearly collided with Brown's truck. After unloading their garbage at the landfill, Brown and the driver of truck No. 244 brought No. 244 to respondent's truck-repair facility, where they were told that the brakes would be repaired either over the weekend or in the morning of Monday, May 14.Early in the morning of Monday, May 14, while transporting a load of garbage to the landfill, Brown experienced difficulty with one of the wheels of his own truck - No. 245 - and brought that truck in for repair. At the repair facility, Brown was told that, because of a backlog at the facility, No. 245 could not be repaired that day. Brown reported the situation to his supervisor, Otto Jasmund, who ordered Brown to punch out and go home. Before Brown could leave, however, Jasmund changed his mind and asked Brown to drive truck No. 244 instead. Brown refused, explaining that "there's something wrong with that truck... . [S]omething was wrong with the brakes ... there was a grease seal or something leaking causing it to be affecting the brakes." Brown did not, however, explicitly refer to Article XXI of the collective-bargaining agreement or to the agreement in general. In response to Brown's refusal to drive truck No. 244, Jasmund angrily told Brown to go home. At that point, an argument ensued and Robert Madary, another supervisor, intervened, repeating Jasmund's request that Brown drive truck No. 244. Again, Brown refused, explaining that No. 244 "has got problems and I don't want to drive it." Madary replied that half the trucks had problems and that if respondent tried to fix all of them it would be unable to do business. He went on to tell Brown that "[w]e've got all this garbage out here to haul and you tell me about you don't want to drive." Brown responded, "Bob, what you going to do, put the garbage ahead of the safety of the men?" Finally, Madary went to his office and Brown went home. Later that day, Brown received word that he had been discharged. He immediately returned to work in an attempt to gain reinstatement but was unsuccessful.On May 15, the day after the discharge, Brown filed a written grievance, pursuant to the collective-bargaining agreement, asserting that truck No. 244 was defective, that it had been improper for him to have been ordered to drive the truck, and that his discharge was therefore also improper. The union, however, found no objective merit in the grievance and declined to process it.On September 7, 1979, Brown filed an unfair labor practice charge with the NLRB, challenging his discharge. The Administrative Law Judge (ALJ) found that Brown had been discharged for refusing to operate truck No. 244, that Brown's refusal was covered by 7 of the NLRA, and that respondent had therefore committed an unfair labor practice under 8(a)(1) of the Act. The ALJ held that an employee who acts alone in asserting a contractual right can nevertheless be engaged in concerted activity within the meaning of 7:"`[W]hen an employee makes complaints concerning safety matters which are embodied in a contract, he is acting not only in his own interest, but is attempting to enforce such contract provisions in the interest of all the employees covered under that contract. Such activity we have found to be concerted and protected under the Act, and the discharge of an individual for engaging in such activity to be in violation of Section 8(a)(1) [of the Act].'" 256 N. L. R. B., at 454 (quoting Roadway Express, Inc., 217 N. L. R. B. 278, 279 (1975)). The NLRB adopted the findings and conclusions of the ALJ and ordered that Brown be reinstated with backpay.On a petition for enforcement of the Board's order, the Court of Appeals disagreed with the ALJ and the Board. Finding that Brown's refusal to drive truck No. 244 was an action taken solely on his own behalf, the Court of Appeals concluded that the refusal was not a concerted activity within the meaning of 7. This holding followed the court's prior decision in ARO, Inc. v. NLRB, 596 F.2d 713 (CA6 1979), in which the Court of Appeals had held:"For an individual claim or complaint to amount to concerted action under the Act it must not have been made solely on behalf of an individual employee, but it must be made on behalf of other employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement." Id., at 718. IISection 7 of the NLRA provides that "[e]mployees shall have the right to ... join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. 157. The NLRB's decision in this case applied the Board's longstanding "Interboro doctrine," under which an individual's assertion of a right grounded in a collective-bargaining agreement is recognized as "concerted activit[y]" and therefore accorded the protection of 7.6 See Interboro Contractors, Inc., 157 N. L. R. B. 1295, 1298 (1966), enf'd, 388 F.2d 495 (CA2 1967); Bunney Bros. Construction Co., 139 N. L. R. B. 1516, 1519 (1962). The Board has relied on two justifications for the doctrine: First, the assertion of a right contained in a collective-bargaining agreement is an extension of the concerted action that produced the agreement, Bunney Bros. Construction, supra, at 1519; and second, the assertion of such a right affects the rights of all employees covered by the collective-bargaining agreement. Interboro Contractors, supra, at 1298.We have often reaffirmed that the task of defining the scope of 7 "is for the Board to perform in the first instance as it considers the wide variety of cases that come before it," Eastex, Inc. v. NLRB, , and, on an issue that implicates its expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference, NLRB v. Iron Workers, ; NLRB v. Hearst Publications, Inc., . The question for decision today is thus narrowed to whether the Board's application of 7 to Brown's refusal to drive truck No. 244 is reasonable.7 Several reasons persuade us that it is.ANeither the Court of Appeals nor respondent appears to question that an employee's invocation of a right derived from a collective-bargaining agreement meets 7's requirement that an employee's action be taken "for purposes of collective bargaining or other mutual aid or protection." As the Board first explained in the Interboro case, a single employee's invocation of such rights affects all the employees that are covered by the collective-bargaining agreement. Interboro Contractors, Inc., supra, at 1298. This type of generalized effect, as our cases have demonstrated, is sufficient to bring the actions of an individual employee within the "mutual aid or protection" standard, regardless of whether the employee has his own interests most immediately in mind. See, e. g., NLRB v. J. Weingarten, Inc., .The term "concerted activit[y]" is not defined in the Act but it clearly enough embraces the activities of employees who have joined together in order to achieve common goals. See, e. g., Meyers Industries, Inc., 268 N. L. R. B. 493, 494-495 (1984). What is not self-evident from the language of the Act, however, and what we must elucidate, is the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity. We now turn to consider the Board's analysis of that question as expressed in the Interboro doctrine.Although one could interpret the phrase, "to engage in other concerted activities," to refer to a situation in which two or more employees are working together at the same time and the same place toward a common goal, the language of 7 does not confine itself to such a narrow meaning. In fact, 7 itself defines both joining and assisting labor organizations - activities in which a single employee can engage - as concerted activities.8 Indeed, even the courts that have rejected the Interboro doctrine recognize the possibility that an individual employee may be engaged in concerted activity when he acts alone. They have limited their recognition of this type of concerted activity, however, to two situations: (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee. See, e. g., ARO, Inc. v. NLRB, 596 F.2d, at 717; NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971). The disagreement over the Interboro doctrine, therefore, merely reflects differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for 7 to apply. We cannot say that the Board's view of that relationship, as applied in the Interboro doctrine, is unreasonable.The invocation of a right rooted in a collective-bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement. That process - beginning with the organization of a union, continuing into the negotiation of a collective-bargaining agreement, and extending through the enforcement of the agreement - is a single, collective activity.9 Obviously, an employee could not invoke a right grounded in a collective-bargaining agreement were it not for the prior negotiating activities of his fellow employees. Nor would it make sense for a union to negotiate a collective-bargaining agreement if individual employees could not invoke the rights thereby created against their employer. Moreover, when an employee invokes a right grounded in the collective-bargaining agreement, he does not stand alone. Instead, he brings to bear on his employer the power and resolve of all his fellow employees. When, for instance, James Brown refused to drive a truck he believed to be unsafe, he was in effect reminding his employer that he and his fellow employees, at the time their collective-bargaining agreement was signed, had extracted a promise from City Disposal that they would not be asked to drive unsafe trucks. He was also reminding his employer that if it persisted in ordering him to drive an unsafe truck, he could reharness the power of that group to ensure the enforcement of that promise. It was just as though James Brown was reassembling his fellow union members to reenact their decision not to drive unsafe trucks. A lone employee's invocation of a right grounded in his collective-bargaining agreement is, therefore, a concerted activity in a very real sense.Furthermore, the acts of joining and assisting a labor organization, which 7 explicitly recognizes as concerted, are related to collective action in essentially the same way that the invocation of a collectively bargained right is related to collective action. When an employee joins or assists a labor organization, his actions may be divorced in time, and in location as well, from the actions of fellow employees. Because of the integral relationship among the employees' actions, however, Congress viewed each employee as engaged in concerted activity. The lone employee could not join or assist a labor organization were it not for the related organizing activities of his fellow employees. Conversely, there would be limited utility in forming a labor organization if other employees could not join or assist the organization once it is formed. Thus, the formation of a labor organization is integrally related to the activity of joining or assisting such an organization in the same sense that the negotiation of a collective-bargaining agreement is integrally related to the invocation of a right provided for in the agreement. In each case, neither the individual activity nor the group activity would be complete without the other.10 The Interboro doctrine is also entirely consistent with the purposes of the Act, which explicitly include the encouragement of collective bargaining and other "practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions." 29 U.S.C. 151. Although, as we have said, there is nothing in the legislative history of 7 that specifically expresses the understanding of Congress in enacting the "concerted activities" language, the general history of 7 reveals no inconsistency between the Interboro doctrine and congressional intent. That history begins in the early days of the labor movement, when employers invoked the common-law doctrines of criminal conspiracy and restraint of trade to thwart workers' attempts to unionize. See Automobile Workers v. Wisconsin Employment Relations Board (Briggs & Stratton), . As this Court recognized in NLRB v. Jones & Laughlin Steel Corp., , a single employee at that time "was helpless in dealing with an employer; ... he was dependent ordinarily on his daily wage for the maintenance of himself and family; ... if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; ... union was essential to give laborers opportunity to deal on an equality with their employer."Congress' first attempt to equalize the bargaining power of management and labor, and its first use of the term "concert" in this context, came in 1914 with the enactment of 6 and 20 of the Clayton Act, which exempted from the antitrust laws certain types of peaceful union activities. 15 U.S.C. 17; 29 U.S.C. 52.11 There followed, in 1932, the Norris-La Guardia Act, which declared that "the individual ... worker ... shall be free from the interference, restraint, or coercion, of employers ... in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. 102 (emphasis added). This was the source of the language enacted in 7. It was adopted first in 7(a) of the National Industrial Recovery Act and then, in 1935, in 7 of the NLRA. See generally Gorman & Finkin, The Individual and the Requirement of "Concert" Under the National Labor Relations Act, 130 U. Pa. L. Rev. 286, 331-346 (1981).Against this background, it is evident that, in enacting 7 of the NLRA, Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. There is no indication that Congress intended to limit this protection to situations in which an employee's activity and that of his fellow employees combine with one another in any particular way. Nor, more specifically, does it appear that Congress intended to have this general protection withdrawn in situations in which a single employee, acting alone, participates in an integral aspect of a collective process. Instead, what emerges from the general background of 7 - and what is consistent with the Act's statement of purpose - is a congressional intent to create an equality in bargaining power between the employee and the employer throughout the entire process of labor organizing, collective bargaining and enforcement of collective-bargaining agreements.The Board's Interboro doctrine, based on a recognition that the potential inequality in the relationship between the employee and the employer continues beyond the point at which a collective-bargaining agreement is signed, mitigates that inequality throughout the duration of the employment relationship, and is, therefore, fully consistent with congressional intent. Moreover, by applying 7 to the actions of individual employees invoking their rights under a collective-bargaining agreement, the Interboro doctrine preserves the integrity of the entire collective-bargaining process; for by invoking a right grounded in a collective-bargaining agreement, the employee makes that right a reality, and breathes life, not only into the promises contained in the collective-bargaining agreement, but also into the entire process envisioned by Congress as the means by which to achieve industrial peace.To be sure, the principal tool by which an employee invokes the rights granted him in a collective-bargaining agreement is the processing of a grievance according to whatever procedures his collective-bargaining agreement establishes. No one doubts that the processing of a grievance in such a manner is concerted activity within the meaning of 7. See, e. g., NLRB v. Ford Motor Co., 683 F.2d 156, 159 (CA6 1982); Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 729 (CA5 1970). Indeed, it would make little sense for 7 to cover an employee's conduct while negotiating a collective-bargaining agreement, including a grievance mechanism by which to protect the rights created by the agreement, but not to cover an employee's attempt to utilize that mechanism to enforce the agreement.In practice, however, there is unlikely to be a bright-line distinction between an incipient grievance, a complaint to an employer, and perhaps even an employee's initial refusal to perform a certain job that he believes he has no duty to perform. It is reasonable to expect that an employee's first response to a situation that he believes violates his collective-bargaining agreement will be a protest to his employer. Whether he files a grievance will depend in part on his employer's reaction and in part upon the nature of the right at issue. In addition, certain rights might not be susceptible of enforcement by the filing of a grievance. In such a case, the collective-bargaining agreement might provide for an alternative method of enforcement, as did the agreement involved in this case, see supra, at 825, or the agreement might be silent on the matter. Thus, for a variety of reasons, an employee's initial statement to an employer to the effect that he believes a collectively bargained right is being violated, or the employee's initial refusal to do that which he believes he is not obligated to do, might serve as both a natural prelude to, and an efficient substitute for, the filing of a formal grievance. As long as the employee's statement or action is based on a reasonable and honest belief that he is being, or has been, asked to perform a task that he is not required to perform under his collective-bargaining agreement, and the statement or action is reasonably directed toward the enforcement of a collectively bargained right, there is no justification for overturning the Board's judgment that the employee is engaged in concerted activity, just as he would have been had he filed a formal grievance.The fact that an activity is concerted, however, does not necessarily mean that an employee can engage in the activity with impunity. An employee may engage in concerted activity in such an abusive manner that he loses the protection of 7. See, e. g., Crown Central Petroleum Corp. v. NLRB, supra, at 729; Yellow Freight System, Inc., 247 N. L. R. B. 177, 181 (1980). Cf. Eastex, Inc. v. NLRB, ; NLRB v. Babcock & Wilcox Co., . Furthermore, if an employer does not wish to tolerate certain methods by which employees invoke their collectively bargained rights, he is free to negotiate a provision in his collective-bargaining agreement that limits the availability of such methods. No-strike provisions, for instance, are a common mechanism by which employers and employees agree that the latter will not invoke their rights by refusing to work. In general, if an employee violates such a provision, his activity is unprotected even though it may be concerted. Mastro Plastics Corp. v. NLRB, . Whether Brown's action in this case was unprotected, however, is not before us.BRespondent argues that the Interboro doctrine undermines the arbitration process by providing employees with the possibility of provoking a discharge and then filing an unfair labor practice claim. Brief for Respondent 34-42. This argument, however, misses the mark for several reasons. First, an employee who purposefully follows this route would run the risk that the Board would find his actions concerted but nonetheless unprotected, as discussed above.Second, the Interboro doctrine does not shift dispute resolution from the grievance and arbitration process to NLRB adjudication in any way that is different from the alternative position adopted by the Court of Appeals, and pressed upon us by respondent. As stated above, see supra, at 828, the Court of Appeals would allow a finding of concerted activity if two employees together invoke a collectively bargained right, if a lone employee represents another employee in addition to himself when he invokes the right, or if the lone employee invokes the right in a manner that is intended to induce at least one other employee to join him. In each of these situations, however, the underlying substance of the dispute between the employees and the employer is the same as when a single employee invokes a collectively bargained right by himself. In each case the employees are claiming that their employer violated their collective-bargaining agreement, and if the complaining employee or employees in those situations are discharged, their unfair labor practice action would be identical to an action brought by an employee who has been discharged for invoking a collectively bargained right by himself. Because the employees in each of these situations are equally well positioned to go through the grievance and arbitration process, there is no basis for singling out the Interboro doctrine as undermining that process any more than would the approach of respondent and the Courts of Appeals that have rejected the doctrine.Finally, and most importantly, to the extent that the factual issues raised in an unfair labor practice action have been, or can be, addressed through the grievance process, the Board may defer to that process. See Collyer Insulated Wire, 192 N. L. R. B. 837 (1971); Spielberg Manufacturing Co., 112 N. L. R. B. 1080 (1955). There is no reason, therefore, for the Board's interpretation of "concerted activit[y]" in 7 to be constrained by a concern for maintaining the integrity of the grievance and arbitration process.IIIIn this case, the Board found that James Brown's refusal to drive truck No. 244 was based on an honest and reasonable belief that the brakes on the truck were faulty. Brown explained to each of his supervisors his reason for refusing to drive the truck. Although he did not refer to his collective-bargaining agreement in either of these confrontations, the agreement provided not only that "[t]he Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition," but also that "[i]t shall not be a violation of this Agreement where employees refuse to operate such equipment, unless such refusal is unjustified." See supra, at 825. There is no doubt, therefore, nor could there have been any doubt during Brown's confrontations with his supervisors, that by refusing to drive truck No. 244, Brown was invoking the right granted him in his collective-bargaining agreement to be free of the obligation to drive unsafe trucks. Moreover, there can be no question but that Brown's refusal to drive the truck was reasonably well directed toward the enforcement of that right. Indeed, it would appear that there were no other means available by which Brown could have enforced the right. If he had gone ahead and driven truck No. 244, the issue may have been moot.Respondent argues that Brown's action was not concerted because he did not explicitly refer to the collective-bargaining agreement as a basis for his refusal to drive the truck. Brief for Respondent 21-22. The Board, however, has never held that an employee must make such an explicit reference for his actions to be covered by the Interboro doctrine, and we find that position reasonable. We have often recognized the importance of "the Board's special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., . As long as the nature of the employee's complaint is reasonably clear to the person to whom it is communicated, and the complaint does, in fact, refer to a reasonably perceived violation of the collective-bargaining agreement, the complaining employee is engaged in the process of enforcing that agreement. In the context of a workplace dispute, where the participants are likely to be unsophisticated in collective-bargaining matters, a requirement that the employee explicitly refer to the collective-bargaining agreement is likely to serve as nothing more than a trap for the unwary.Respondent further argues that the Board erred in finding Brown's action concerted based only on Brown's reasonable and honest belief that truck No. 244 was unsafe. Brief for Respondent 38. Respondent bases its argument on the language of the collective-bargaining agreement, which provides that an employee may refuse to drive an unsafe truck "unless such refusal is unjustified." In the view of respondent, this language allows a driver to refuse to drive a truck only if the truck is objectively unsafe. Regardless of whether respondent's interpretation of the agreement is correct, a question as to which we express no view, this argument confuses the threshold question whether Brown's conduct was concerted with the ultimate question whether that conduct was protected. The rationale of the Interboro doctrine compels the conclusion that an honest and reasonable invocation of a collectively bargained right constitutes concerted activity, regardless of whether the employee turns out to have been correct in his belief that his right was violated. See Part II, supra. No one would suggest, for instance, that the filing of a grievance is concerted only if the grievance turns out to be meritorious. As long as the grievance is based on an honest and reasonable belief that a right had been violated, its filing is a concerted activity because it is an integral part of the process by which the collective-bargaining agreement is enforced. The same is true of other methods by which an employee enforces the agreement. On the other hand, if the collective-bargaining agreement imposes a limitation on the means by which a right may be invoked, the concerted activity would be unprotected if it went beyond that limitation. See supra, at 837.In this case, because Brown reasonably and honestly invoked his right to avoid driving unsafe trucks, his action was concerted. It may be that the collective-bargaining agreement prohibits an employee from refusing to drive a truck that he reasonably believes to be unsafe, but that is, in fact, perfectly safe. If so, Brown's action was concerted but unprotected. As stated above, however, the only issue before this Court and the only issue passed upon by the Board or the Court of Appeals is whether Brown's action was concerted, not whether it was protected.IVThe NLRB's Interboro doctrine recognizes as concerted activity an individual employee's reasonable and honest invocation of a right provided for in his collective-bargaining agreement. We conclude that the doctrine constitutes a reasonable interpretation of the Act. Accordingly, we accept the Board's conclusion that James Brown was engaged in concerted activity when he refused to drive truck No. 244. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion, including an inquiry into whether respondent may continue to defend this action on the theory that Brown's refusal to drive truck No. 244 was unprotected, even if concerted. It is so ordered. |
7 | In this civil action the United States, the appellant, charges that the consolidation of the largest and fourth largest of the six commercial banks in Fayette County, Kentucky, violates 1 and 2 of the Sherman Act. The Comptroller of the Currency had approved the consolidation although reports, required by the Bank Merger Act of 1960, from the Attorney General, the Federal Deposit Insurance Corporation, and the Board of Governors of the Federal Reserve System all concluded that it would adversely affect competition in the area. Although recognizing that approval by the Comptroller of the Currency did not immunize the consolidation from the operation of the Act, the District Court found that no violation was shown. Held: The consolidation of the appellee banks constitutes a violation of 1 of the Sherman Act. Pp. 666-673. (a) Commercial banking is one relevant product market in which to judge the effect of the consolidation on competition. Pp. 666-668. (b) The consolidation should be judged by its effect on competition in Fayette County, the geographical market. P. 668. (c) The new bank controls over half of the relevant market and by its disparity of size, as attested by three of the four remaining banks, will seriously affect their long-range ability to compete, despite the absence of any "predatory" purpose. P. 669. (d) The elimination of significant competition between the parties to the consolidation, which were major competitive factors in the relevant market, of itself constitutes an unreasonable restraint of trade in violation of 1 of the Act. Northern Securities Co. v. United States, , followed; United States v. Columbia Steel Co., , distinguished. Pp. 669-673. 208 F. Supp. 457, reversed. Daniel M. Friedman argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Larry L. Williams, Melvin Spaeth and Richard J. Wertheimer.Robert M. Odear argued the cause for appellees. With him on the brief were Gladney Harville, Rufus Lisle and Clinton M. Harbison.Opinion of the Court by MR. JUSTICE DOUGLAS, announced by MR. JUSTICE BLACK.This is a civil suit in which the United States charges that the consolidation of First National Bank and Trust Co. of Lexington, Kentucky (First National), and Security Trust Co. of Lexington (Security Trust), to form First Security National Bank and Trust Co. (First Security), constitutes a combination in restraint of trade and commerce in violation of 1 of the Sherman Act and a combination and an attempt to monopolize trade and commerce in violation of 2 of that Act.1 26 Stat. 209 as amended, 15 U.S.C. 1, 2.The plan of consolidation was submitted to the Comptroller of the Currency and he, pursuant to the provision of the Bank Merger Act of 1960, 74 Stat. 129, 12 U.S.C. (Supp. IV) 1828 (c), requested and received reports of the probable competitive effects of the proposed consolidation from the Attorney General, the Federal Deposit Insurance Corp., and the Board of Governors of the Federal Reserve System. Each report concluded that the consolidation would adversely affect competition among commercial banks in Fayette County. Nevertheless, the Comptroller of the Currency approved the consolidation on February 27, 1961; it was effected March 1, and this Sherman Act suit was filed the same day. The District Court, while agreeing that the Comptroller of the Currency's approval of the consolidation did not render it immune from challenge under the Sherman Act,2 held that no violation of that Act had been shown. 208 F. Supp. 457. The case is here on direct appeal. 15 U.S.C. 29. We noted probable jurisdiction. .We agree with the District Court that commercial banking is one relevant market3 for determining the 1 issue in the case. In Fayette County commercial banks are the only financial institutions authorized to receive demand deposits and to offer checking accounts. They are also the only financial institutions in the county that accept time deposits from partnerships and corporations and that make single-payment loans to individuals4 and commercial and industrial loans to businesses. Moreover, commercial banks offer a wider variety of financial services than the other financial institutions, e. g., deposit boxes, Christmas Clubs, correspondent bank facilities, collection services, and trust department services.We also agree with the District Court that the consolidation should be judged in light of its effect on competition in Fayette County.5 The record establishes that here, as in United States v. Philadelphia National Bank, , the "factor of inconvenience" does indeed localize banking competition "as effectively as high transportation costs in other industries." 374 U.S., at 358. Practically all of the business of the banks in Lexington originates in Fayette County. Only 4.8% of First National's demand deposit accounts and 4.5% of Security Trust's were held by depositors who did not maintain offices in Lexington. In dollar volume the percentage was 2.8 for each bank. Apart from large national companies, businesses in the area are restricted to the Fayette County banks for their working capital loans; and commercial banks outside Lexington do a negligible amount of business in the county. There is also a negligible amount of competition from corporate fiduciaries outside Fayette County.We turn then to the facts relevant to the alleged restraint of trade under the Sherman Act.Prior to the consolidation the relative size of First National as compared to its five competitors was as follows: Assets Deposits Loans First National ................ 39.83% 40.06% 40.22% Citizens Union ................ 17.06 16.78 16.41 Bank of Commerce .............. 12.99 13.32 14.46 Security Trust ................ 12.87 11.88 13.98 Central Bank .................. 9.14 9.66 8.85 Second National ............... 8.10 8.30 6.09 The bank established by the consolidation was larger than all the remaining banks combined: Assets Deposits Loans First Security ................ 52.70% 51.95% 54.20% Citizens Union ................ 17.06 16.78 16.41 Bank of Commerce .............. 12.99 13.32 14.46 Central Bank .................. 9.14 9.66 8.85 Second National ............... 8.10 8.30 6.09Prior to the consolidation, First National and Security Trust had been close competitors in the trust department business. Between them they held 94.82% of all trust assets, 92.20% of all trust department earnings, and 79.62% of all trust accounts: Trust Number Trust Dept. of Trust Assets Earnings Accounts Security Trust ................ 50.55% 46.91% 54.31% First National ................ 44.27 45.29 25.31 Citizens Union ................ 3.41 4.21 16.01 Second National ............... 1.33 .63 2.12 Bank of Commerce .............. .44 2.96 2.26There was here no "predatory" purpose. But we think it clear that significant competition will be eliminated by the consolidation. There is testimony in the record from three of the four remaining banks that the consolidation will seriously affect their ability to compete effectively over the years; that the "image" of "bigness" is a powerful attraction to customers, an advantage that increases progressively with disparity in size; and that the multiplicity of extra services in the trust field which the new company could offer tends to foreclose competition there.We think it clear that the elimination of significant competition between First National and Security Trust constitutes an unreasonable restraint of trade in violation of 1 of the Sherman Act. The case, we think, is governed by Northern Securities Co. v. United States, , and its progeny. The Northern Pacific and the Great Northern operated parallel lines west of Chicago. A holding company acquired the controlling stock in each company. A violation of 1 was adjudged without reference to or a determination of the extent to which the traffic of the combined roads was still subject to some competition. It was enough that the two roads competed, that their competition was not insubstantial, and that the combination put an end to it. Id., at 326-328.United States v. Union Pacific R. Co., , was in the same tradition. Acquisition by Union Pacific of a controlling stock interest in Southern Pacific was held to violate 1 of the Sherman Act. As in the Northern Securities case the Court held the combination illegal because of the elimination of the inter se competition between the merging companies, without reference to the strength or weakness of whatever competition remained. The Court said: "It is urged that this competitive traffic was infinitesimal when compared with the gross amount of the business transacted by both roads, and so small as only to amount to that incidental restraint of trade which ought not to be held to be within the law; but we think the testimony amply shows that, while these roads did a great deal of business for which they did not compete and that the competitive business was a comparatively small part of the sum total of all traffic, state and interstate, carried over them, nevertheless such competing traffic was large in volume, amounting to many millions of dollars. Before the transfer of the stock this traffic was the subject of active competition between these systems, but by reason of the power arising from such transfer it has since been placed under a common control. It was by no means a negligible part, but a large and valuable part, of interstate commerce which was thus directly affected." Id., at 88-89. United States v. Reading Co., , is the third of the series. There a holding company brought under common control two competing interstate carriers and two competing coal companies. That was held "without more" to be a violation of 1 and 2 of the Sherman Act. Id., at 59.The fourth of the series is United States v. Southern Pacific Co., , in which the acquisition by Southern Pacific of stock of Central Pacific - a connecting link for transcontinental shipments by a competitor of Southern Pacific - was held to violate the Sherman Act. In reference to the earlier cases6 the Court said: "These cases, collectively, establish that one system of railroad transportation cannot acquire another, nor a substantial and vital part thereof, when the effect of such acquisition is to suppress or materially reduce the free and normal flow of competition in the channels of interstate trade." Id., at 230-231. We need not go so far here as we went in United States v. Yellow Cab Co., , where we said: "... the amount of interstate trade thus affected by the conspiracy is immaterial in determining whether a violation of the Sherman Act has been charged in the complaint. Section 1 of the Act outlaws unreasonable restraints on interstate commerce, regardless of the amount of the commerce affected." The four railroad cases at least stand for the proposition that where merging companies are major competitive factors in a relevant market, the elimination of significant competition between them, by merger or consolidation, itself constitutes a violation of 1 of the Sherman Act. That standard was met in the present case in view of the fact that the two banks in question had such a large share of the relevant market.It is said that United States v. Columbia Steel Co., , is counter to this view. There the United States Steel Corp. acquired the assets of Consolidated Steel Corp. Both made fabricated structural steel products, the former selling on a nation-wide basis, the latter in 11 States. The conclusion that the acquisition was lawful was reached after the Court observed, inter alia, that because of rate structures and the location of United States Steel's fabricating subsidiaries, the latter were unable to compete effectively in Consolidated's market. Id., at 511-518, 529-530. The Columbia Steel case must be confined to its special facts. The Court said:"In determining what constitutes unreasonable restraint, we do not think the dollar volume is in itself of compelling significance; we look rather to the percentage of business controlled, the strength of the remaining competition, whether the action springs from business requirements or purpose to monopolize, the probable development of the industry, consumer demands, and other characteristics of the market. We do not undertake to prescribe any set of percentage figures by which to measure the reasonableness of a corporation's enlargement of its activities by the purchase of the assets of a competitor. The relative effect of percentage command of a market varies with the setting in which that factor is placed." Id., at 527-528. In the present case all those factors clearly point the other way, as we have seen. Where, as here, the merging companies are major competitive factors in a relevant market, the elimination of significant competition between them constitutes a violation of 1 of the Sherman Act. In view of our conclusion under 1 of the Sherman Act, we do not reach the questions posed under 2. Reversed.MR. JUSTICE BRENNAN and MR. JUSTICE WHITE agree with the Court that the elimination of competition between the two banks in the circumstances here presented was a violation of 1 of the Sherman Act. They would rest the reversal, however, solely on the conclusion that the factors relied on in United States v. Columbia Steel Co., , quoted by the Court, as applied to the facts of this case, clearly compel the reversal. |
8 | The authority of respondent City of Thibodaux to expropriate the property of petitioner Power and Light Company was challenged in an eminent domain proceeding in the District Court, which had jurisdiction based on diversity of citizenship. Petitioner answered respondent's reliance upon a Louisiana statute by citing an opinion of the Louisiana Attorney General advising that a Louisiana city was without power to effect a similar expropriation. The District Judge, on his own motion, ordered that further proceedings be stayed until the Louisiana Supreme Court had been afforded an opportunity to interpret the theretofore judicially uninterpreted Act. Held: The District Court properly exercised the power it had in this case to stay proceedings pending a prompt state court construction of a state statute of dubious meaning. Pp. 25-31. 255 F.2d 774, reversed.J. Raburn Monroe argued the cause for petitioner. With him on the brief were J. Blanc Monroe, Monte M. Lemann, Malcolm L. Monroe and Andrew P. Carter.Louis Fenner Claiborne argued the cause for respondent. With him on the brief was Remy Chiasson.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.The City of Thibodaux, Louisiana, filed a petition for expropriation in one of the Louisiana District Courts, asserting a taking of the land, buildings, and equipment of petitioner Power and Light Company. Petitioner, a Florida corporation, removed the case to the United States District Court for the Eastern District of Louisiana on the basis of diversity of citizenship. After a pre-trial conference in which various aspects of the case were discussed, the district judge, on his own motion, ordered that "Further proceedings herein, therefore, will be stayed until the Supreme Court of Louisiana has been afforded an opportunity to interpret Act 111 of 1900," the authority on which the city's expropriation order was based. 153 F. Supp. 515, 517-518. The Court of Appeals for the Fifth Circuit reversed, holding that the procedure adopted by the district judge was not available in an expropriation proceeding, and that in any event no exceptional circumstances were present to justify the procedure even if available. 255 F.2d 774. We granted certiorari, , because of the importance of the question in the judicial enforcement of the power of eminent domain under diversity jurisdiction.1 In connection with the first decision in which a closely divided Court considered and upheld jurisdiction over an eminent domain proceeding removed to the federal courts on the basis of diversity of citizenship, Madisonville Traction Co. v. St. Bernard Mining Co., , Mr. Justice Holmes made the following observation: "The fundamental fact is that eminent domain is a prerogative of the State, which on the one hand may be exercised in any way that the State thinks fit, and on the other may not be exercised except by an authority which the State confers." While this was said in the dissenting opinion, the distinction between expropriation proceedings and ordinary diversity cases, though found insufficient to restrict diversity jurisdiction, remains a relevant and important consideration in the appropriate judicial administration of such actions in the federal courts. We have increasingly recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law. Thus in Railroad Comm'n v. Pullman Co., , it was said:"Had we or they [the lower court judges] no choice in the matter but to decide what is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot escape being a forecast rather than a determination." On the other hand, we have held that the mere difficulty of state law does not justify a federal court's relinquishment of jurisdiction in favor of state court action. Meredith v. Winter Haven, .2 But where the issue touched upon the relationship of City to State, Chicago v. Fieldcrest Dairies, Inc., , or involved the scope of a previously uninterpreted state statute which, if applicable, was of questionable constitutionality, Leiter Minerals, Inc., v. United States, , we have required District Courts, and not merely sanctioned an exercise of their discretionary power, to stay their proceedings pending the submission of the state law question to state determination.These prior cases have been cases in equity, but they did not apply a technical rule of equity procedure. They reflect a deeper policy derived from our federalism. We have drawn upon the judicial discretion of the chancellor to decline jurisdiction over a part or all of a case brought before him. See Railroad Comm'n v. Pullman Co., supra. Although an eminent domain proceeding is deemed for certain purposes of legal classification a "suit at common law," Kohl v. United States, , it is of a special and peculiar nature. Mr. Justice Holmes set forth one differentiating characteristic of eminent domain: it is intimately involved with sovereign prerogative. And when, as here, a city's power to condemn is challenged, a further aspect of sovereignty is introduced. A determination of the nature and extent of delegation of the power of eminent domain concerns the apportionment of governmental powers between City and State. The issues normally turn on legislation with much local variation interpreted in local settings. The considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption by federal courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court. The special nature of eminent domain justifies a district judge, when his familiarity with the problems of local law so counsels him, to ascertain the meaning of a disputed state statute from the only tribunal empowered to speak definitively - the courts of the State under whose statute eminent domain is sought to be exercised - rather than himself make a dubious and tentative forecast. This course does not constitute abnegation of judicial duty. On the contrary, it is a wise and productive discharge of it. There is only postponement of decision for its best fruition. Eventually the District Court will award compensation if the taking is sustained. If for some reason a declaratory judgment is not promptly sought from the state courts and obtained within a reasonable time, the District Court, having retained complete control of the litigation, will doubtless assert it to decide also the question of the meaning of the state statute. The justification for this power, to be exercised within the indicated limits, lies in regard for the respective competence of the state and federal court systems and for the maintenance of harmonious federal-state relations in a matter close to the political interests of a State.It would imply an unworthy conception of the federal judiciary to give weight to the suggestion that acknowledgment of this power will tempt some otiose or timid judge to shuffle off responsibility. "Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., . Procedures for effective judicial administration presuppose a federal judiciary composed of judges well-equipped and of sturdy character in whom may safely be vested, as is already, a wide range of judicial discretion, subject to appropriate review on appeal. In light of these considerations, the immediate situation quickly falls into place. In providing on his own motion for a stay in this case, an experienced district judge was responding in a sensible way to a quandary about the power of the City of Thibodaux into which he was placed by an opinion of the Attorney General of Louisiana in which it was concluded that in a strikingly similar case a Louisiana city did not have the power here claimed by the City. A Louisiana statute apparently seems to grant such a power. But that statute apparently been interpreted, in respect to a situation like that before the judge, by the Louisiana courts and it would not be the first time that the authoritative tribunal has found in a statute less than meets the outsider's eye. Informed local courts may find meaning not discernible to the outsider. The consequence of allowing this to come to pass would be that this case would be the only case in which the Louisiana statute is construed as we would construe it, whereas the rights of all other litigants would be thereafter governed by a decision of the Supreme Court of Louisiana quite different from ours.Caught between the language of an old but uninterpreted statute and the pronouncement of the Attorney General of Louisiana, the district judge determined to solve his conscientious perplexity by directing utilization of the legal resources of Louisiana for a prompt ascertainment of meaning through the only tribunal whose interpretation could be controlling - the Supreme Court of Louisiana. The District Court was thus exercising a fair and well-considered judicial discretion in staying proceedings pending the institution of a declaratory judgment action and subsequent decision by the Supreme Court of Louisiana.The judgment of the Court of Appeals is reversed and the stay order of the District Court reinstated. We assume that both parties will cooperate in taking prompt and effective steps to secure a declaratory judgment under the Louisiana Declaratory Judgment Act, La. Rev. Stat., 1950, Tit. 13, 4231-4246, and a review of that judgment by the Supreme Court of Louisiana. By retaining the case the District Court, of course, reserves power to take such steps as may be necessary for the just disposition of the litigation should anything prevent a prompt state court determination. Reversed. |
7 | The Arkansas Gross Receipts Tax Law of 1941, which levies on sellers an excise tax of 2% on the gross receipts from all sales in the State, held unconstitutional as applied to the transactions here involved, whereby private contractors procured in Arkansas two tractors for use in constructing a naval ammunition depot for the United States under a cost-plus-fixed-fee contract entered into with the Navy Department under 2 (c) (10) and 4 (b) of the Armed Services Procurement Act of 1947 and providing that, in procuring articles required for accomplishment of the work, the contractor should act as purchasing agent for the Government, title to the articles purchased should pass directly from the vendor to the Government and the Government should be directly liable to the vendor for payment of the purchase price. Pp. 111-123. (a) The Procurement Act authorized the purchase of this machinery by the Navy for the construction of an ammunition depot. P. 114. (b) Under the Procurement Act, the Navy Department has power to negotiate contracts which provide for private purchasing agents for supplies and materials. Pp. 114-116. (c) The restrictions in 7 (b) on delegations of authority are not applicable to actions under 2 (c) (10). Pp. 115-116. (d) Under the contract here involved, the United States was the real purchaser; the naming of the Government as purchaser was not merely colorable and did not leave the contractor the real purchaser. Alabama v. King & Boozer, , distinguished. Pp. 116-122. (e) The drafting of the contract by the Navy Department to conserve Government funds, if that was the purpose, does not change the character of the transaction. Pp. 122-123. 221 Ark. 439, 254 S. W. 2d 454, reversed.The Supreme Court of Arkansas held the Arkansas Gross Receipts Tax Law of 1941, Ark. Stat., 1947, 84-1901 et seq., applicable to the sale of certain machinery in Arkansas for use in the construction of a naval ammunition depot for the United States. 221 Ark. 439, 254 S. W. 2d 454. On appeal to this Court, reversed, p. 123.Assistant Attorney General Holland argued the cause for appellants. On the brief were Acting Solicitor General Stern, Mr. Holland, Ellis N. Slack and Lee A. Jackson for the United States, and A. F. House and William Nash for Kern-Limerick, Inc., appellants.O. T. Ward argued the cause and filed a brief for appellee.MR. JUSTICE REED delivered the opinion of the Court.This appeal brings here the legality of the application of the Arkansas Gross Receipts Tax Law of 1941, Ark. Stat., 1947, 84-1901 et seq., to a transaction by which certain private contractors engaged in a joint venture, abbreviated WHMS, procured in Arkansas two diesel tractors costing $17,146, for use in the construction there for the United States of a naval ammunition depot estimated to cost over thirty million dollars. The tractors were procured from Kern-Limerick, Inc., a local dealer. The circumstances of the transaction would concededly make Kern-Limerick liable for the tax if the real purchaser were not the United States.The applicable sections of the Gross Receipts Tax Law levy an "excise tax of two [2%] per centum upon the gross proceeds or gross receipts derived from all sales to any person." 84-1903. This is a sales tax, not a use tax.1 It is to be paid to the Tax Commissioner by the seller, 84-1908. He is the taxpayer, 84-1902 (e), and "shall collect the tax levied hereby from the purchaser." 84-1908. Gross receipts derived from sales to the United States Government are exempt. 84-1904.The construction contract had, so far as pertinent here, the provisions as to "Materials - Purchases" which are set out in the margin.2 It was entered into by the Department of the Navy "under authority of Sections 2 (c) (10) and 4 (b)" of the Armed Services Procurement Act of 1947. 62 Stat. 21, 41 U.S.C. (Supp. V) 157 et seq. These sections authorized this cost-plus-a-fixed-fee contract by negotiation without advertising.3 Kern-Limerick, Inc., the seller, upon demand by the Commissioner paid under protest the amount of the sales tax and brought this action for a refund in accordance with state law. The United States intervened, as under the contract any state taxes the contractor was required to pay were reimbursable to it by the Government. The Supreme Court of Arkansas held WHMS was the purchaser and the claimed tax payable by Kern-Limerick as the "seller." It denied the contention of the United States that the Government was the purchaser. It held that the Armed Services Procurement Act authorized the Navy Department "to purchase ... supplies or services for its own use," but did not authorize the Department "to buy nails, lumber, cement, tractors, etc., which were not to be used by the Navy but by WHMS [in this instance] to construct, as independent contractors, the Ammunition Dump." The state court further held that, even if the Department had the authority to buy the tractors, it could not, under the Procurement Act of 1947, delegate this power to WHMS. 221 Ark. 439, 254 S. W. 2d 454.Appellants seek reversal of the decision on the grounds that the Procurement Act authorizes this contract and that the Arkansas tax cannot by statute or constitutionally be applied to a purchase by the United States.The state court's interpretation of the Procurement Act to deny the Navy authority to buy supplies or equipment for the construction of an ammunition dump is, we think, too restrictive. The Act gives broad powers to the Armed Services for obtaining as cheaply and promptly as possible "purchases and contracts for supplies or services ... for the use of any such agency or otherwise," 2 (a), and provides: SEC. 9. "(b) The term `supplies' shall mean all property except land, and shall include, by way of description and without limitation, public works, buildings, facilities, ships, floating equipment, and vessels of every character, type and description, aircraft, parts, accessories, equipment, machine tools and alteration or installation thereof."4 We hold that the Act allows the purchase of this machinery.It seems to us, also, that under the Procurement Act the Armed Services may use agents, other than its own official personnel, to handle for it the detail of purchase. The contention of Arkansas which was accepted by its Supreme Court is, as we understand it, that the Procurement Act does not permit a delegation to private contractors of any authority to purchase for or pledge the credit of the United States even though these contractors have contracts for construction or supplies on a cost-plus basis. Further, it follows from the Arkansas contention, that without such statutory authority the purchase by the contractor was not for the United States but for itself. This contention is based on the language of the Procurement Act, 7 (a) and (b).5 Pursuant to 7 (a), the Secretary of the Navy, somewhat obscurely, appears to have delegated his authority to determine the necessity for a negotiated contract to a Navy Contracting Officer asserted in the contract, without exception, to be the Chief of the Bureau of Yards and Docks. See 32 CFR 400.201-5 and 402.101. That official negotiated the contract, as it stated and as is admitted by stipulation, under the authority of 2 (c) (10) of the Procurement Act - "for supplies or services for which it is impracticable to secure competition."Arkansas calls attention to the restrictions on delegation in 7 (b) upon which the state court commented. But the provisions of 7 (b), as the words show, do not cover actions under 2 (c) (10), and the section's prohibition of delegation in certain instances is inapplicable. We find nothing in the Procurement Act that bars a contract for purchase for the United States of supplies or services by private persons.The Government asserts that 4 (a) and (b) authorize this contract. Under them, negotiated contracts such as this "may be of any type which ... will promote the best interests of the Government." Under such a provision, it seems that the determination to use purchasing agents is permissible. Where there is no prohibition of a particular type of contract and no direction to use a particular type, the contracting officers are free to follow business practices.6 We conclude that the Navy Department has power to negotiate contracts which provide for private purchasing agents for supplies and materials.With this determination that the provisions of the contract are within the authority of the Procurement Act, we turn to examine the validity of the argument that the naming of the Government as purchaser was only colorable and left the contractor the real purchaser and the transaction subject to the Arkansas tax. Alabama v. King & Boozer, , is relied upon primarily. We consider this argument under the assumption, made by the Supreme Court of Arkansas, that the contract was designed to avoid the necessity in this cost-plus contract of the ultimate payment of a state tax by the United States.We are mindful, too, of the careful attention Congress has given in recent years to a proper adjustment of tax liabilities between the federal and the state sovereignties. Congress has been solicitous to see that states and their subdivisions are not unduly burdened by federal acquisition of property taxable by the states when otherwise held. It understands the burdens on local public agencies from the new federal installations and their accompanying personnel. Provisions deemed suitable have been made.7 These include recent legislation designed to make independent contractors carrying on activities of the Atomic Energy Commission subject to state sales taxes.8 But in recommending the legislation the Joint Committee on Atomic Energy, while providing for voluntary contributions, did not propose to subject Government property and purchases to state taxes. The enactment left them free.9 This recognition of the constitutional immunity of the Federal Government from state exactions rests, of course, upon unquestioned authority. From McCulloch v. Maryland, 4 Wheat. 316, through Gillespie v. Oklahoma, , and New York ex rel. Rogers v. Graves, , a host of cases upheld freedom from state taxation not only for Government activities but also for the agencies and salaries of persons that carried on the work. James v. Dravo Contracting Co., , reviewed this judicial history, adopted for federal contractors and state taxation the reasoning that subjected a state contractor's earnings to federal income tax and upheld the state's gross receipts tax upon a federal contractor's earnings on the ground that it did not interfere "in any substantial way with the performance of federal functions." Id., at 161. The question of the immunity of Government in relation to its purchases of commodities was left open. Id., at 153. Graves v. New York ex rel. O'Keefe, , overruled New York ex rel. Rogers v. Graves, supra, and Gillespie, supra, fell in Oklahoma Tax Comm'n v. Texas Co., .A phase of the question reserved in the Dravo case came up in Alabama v. King & Boozer, . We declared that federal sovereignty "does not spell immunity from paying the added costs, attributable to the taxation of those who furnish supplies to the Government and who have been granted no tax immunity." Id., at 9. That case involved the usual type sales tax on the seller, collectible by him from the buyer. There was there, too, a cost-plus-a-fixed-fee contract with the United States. We held the state tax collectible from the sellers, notwithstanding the Government bore the economic burden. A few excerpts will make clear the purport of the ruling: "As the sale of the lumber by King and Boozer was not for cash, the precise question is whether the Government became obligated to pay for the lumber and so was the purchaser whom the statute taxes, but for the claimed immunity... . The contract provided that the title to all materials and supplies for which the contractors were `entitled to be reimbursed' should vest in the Government `upon delivery at the site of the work or at an approved storage site and upon inspection and acceptance in writing by the Contracting Officer.'" Id., at 10. "... we think all the provisions which we have mentioned, read together, plainly contemplate that the contractors were to purchase in their own names and on their own credit all the materials required, unless the Government should elect to furnish them; that the Government was not to be bound by their purchase contracts, but was obligated only to reimburse the contractors when the materials purchased should be delivered, inspected and accepted at the site." Id., at 11. "But however extensively the Government may have reserved the right to restrict or control the action of the contractors in other respects, neither the reservation nor the exercise of that power gave to the contractors the status of agents of the Government to enter into contracts or to pledge its credit." Id., at 13. The contract here in issue differs in form but not in economic effect on the United States. The Nation bears the burden of the Arkansas tax as it did that of Alabama. The significant difference lies in this. Both the request for bids and the purchase order, in accordance with the contract arrangements making the contractors purchasing agents for the Government, note 2, supra, contain this identical, specific provision: "3. This purchase is made by the Government. The Government shall be obligated to the Vendor for the purchase price, but the Contractor shall handle all payments hereunder on behalf of the Government. The vendor agrees to make demand or claim for payment of the purchase price from the Government by submitting an invoice to the Contractor. Title to all materials and supplies purchased hereunder shall vest in the Government directly from the Vendor. The Contractor shall not acquire title to any thereof." The purchase order is headed Navy Department Bureau of Yards and Docks, is signed by the contractor as purchasing agent, and requires the seller to make this certification on the claim for payment:"`I certify that the above bill is correct and just; that payment therefor has not been received; that all statutory requirements as to American production and labor standards, and all conditions of purchase applicable to the transactions have been complied with; and that the State or local sales taxes are not included in the amounts billed.' ... . ."In the event the Contractor is required to pay and does pay State or local sales taxes, the words `and that State or local sales taxes are not included in the amounts billed' should be struck from the certification and the following additional certification added:"`The amount of State or local sales, use, occupational, gross receipts, or other similar taxes or license fees imposed on the Vendor or Vendee by reason of this transaction is $ ________. The Vendor, or Vendee, as the case may be, agrees upon direction of the United States to make appropriate claim for refund and in the event of any refund, to pay the amount thereof to the United States.'" The stipulation of facts shows in detail the course of business under this contract in the purchase of supplies and the form of this purchase. Both conform to the language of the contract in requiring specific Government approval to the purchasing agent for each request for bid and each purchase. Under these circumstances, it is clear that the Government is the disclosed purchaser and that no liability of the purchasing agent to the seller arises from the transaction.10 A comment should be made about another excerpt from King & Boozer. It was referred to in the Arkansas opinion as though it were effective for the determination of this case. The quotation is this: "The soundness of this conclusion turns on the terms of the contract and the rights and obligations of the parties under it. The taxing statute, as the Alabama courts have held, makes the `purchaser' liable for the tax to the seller, who is required `to add to the sales price' the amount of the tax and collect it when the sales price is collected, whether the sale is for cash or on credit. Who, in any particular transaction like the present, is a `purchaser' within the meaning of the statute, is a question of state law on which only the Supreme Court of Alabama can speak with final authority." Id., at 9-10. Read literally, one might conclude this Court was saying that a state court might interpret its tax statute so as to throw tax liability where it chose, even though it arbitrarily eliminated an exempt sovereign. Such a conclusion as to the meaning of the quoted words would deny the long course of judicial construction which establishes as a principle that the duty rests on this Court to decide for itself facts or constructions upon which federal constitutional issues rest.11 The quotation refers, we think, only to the power of the state court to determine who is responsible under its law for payment to the state of the exaction. The formulation of the "precise question" at the first of the quotation from King & Boozer, p. 118, supra, indicates this.We find that the purchaser under this contract was the United States. Thus, King & Boozer is not controlling for, though the Government also bore the economic burden of the state tax in that case, the legal incidence of that tax was held to fall on the independent contractor and not upon the United States.12 The doctrine of sovereign immunity is so embedded in constitutional history and practice that this Court cannot subject the Government or its official agencies to state taxation without a clear congressional mandate. No instance of such submission is shown.Nor do we think that the drafting of the contract by the Navy Department to conserve Government funds, if that was the purpose, changes the character of the transaction. As we have indicated, the intergovernmental submission to taxation is primarily a problem of finance and legislation. But since purchases by independent contractors of supplies for Government construction or other activities do not have federal immunity from taxation, the form of contracts, when governmental immunity is not waived by Congress, may determine the effect of state taxation on federal agencies,13 for decisions consistently prohibit taxes levied on the property or purchases of the Government itself.14 Reversed. |
0 | Following a sentencing hearing on petitioner Richmond's first degree murder conviction, the Arizona trial judge found three statutory aggravating factors, including, under Ariz.Rev.Stat.Ann. 13703(F)(6), that the offense was committed in an "especially heinous, cruel or depraved manner" ((F)(6) factor). Concluding also that there were no mitigating circumstances sufficiently substantial to warrant leniency, the judge sentenced Richmond to death. The State Supreme Court affirmed, with each of the five justices joining one of three opinions. Among other things, the principal opinion for two of the justices found that the (F)(6) factor - which had been narrowed in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, subsequent to Richmond's sentencing - was applicable. The principal opinion also conducted an independent review of the sentence, and concluded that Richmond's mitigation evidence did not outweigh the aggravating factors. In a special concurrence, two of the other justices disagreed that the offense came within the (F)(6) factor as narrowed by Gretzler, but agreed that a death sentence was appropriate even absent that factor. The fifth justice filed a dissenting opinion urging reversal. After this Court denied certiorari, the Federal District Court declined to grant Richmond habeas corpus relief, and the Court of Appeals affirmed.Held: Richmond's death sentence violates the Eighth Amendment. The (F)(6) factor was unconstitutionally vague at the time the sentencing judge gave it weight. Walton v. Arizona, . The State Supreme Court did not cure this error, because the two specially concurring justices did not actually reweigh the aggravating and mitigating circumstances in affirming the sentence. See, e.g., Clemons v. Mississippi, . Those justices did not purport to perform a new sentencing calculus, or even mention the evidence in mitigation. Nor can such a reweighing be presumed, since language in the concurrence plainly indicates that Richmond's aggravated criminal background provided a conclusive justification for the death penalty, thereby evincing the sort of automatic affirmance rule proscribed in a "weighing" State such as Arizona. Id., at 751. Because a majority of the State Supreme Court did not perform a curative reweighing in voting to affirm Richmond's death sentence, the question whether the principal opinion properly relied on the (F)(6) factor as narrowed in Gretzler need not be decided by this Court. Pp. 46-52. 948 F.2d 1473, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined. THOMAS, J., filed a concurring opinion. SCALIA, J., filed a dissenting opinion, post, p. 53.Timothy K. Ford argued the cause for petitioner. With him on the briefs were Judith H. Ramseyer and Carla Ryan.Paul J. McMurdie argued the cause for respondents. With him on the brief were Grant Woods, Attorney General of Arizona, and Jack Roberts, Assistant Attorney General.JUSTICE O'CONNOR delivered the opinion of the Court.The question in this case is whether the Supreme Court of Arizona has cured petitioner's death sentence of vagueness error.IOn August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella's hotel. There, Corella communicated to petitioner that Crummett was "loaded," and petitioner in turn whispered to Erwin that he intended to rob Crummett.After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crummett to the ground and next threw several large rocks at Crummett's head. Crummett's watch and wallet were taken by Corella, petitioner, or both, and these two then drove away with Erwin. Either petitioner or Corella was driving, and whoever it was drove the car over Crummett twice. Crummett suffered injuries to his head and trunk, and died.The State of Arizona charged petitioner with robbery and first degree murder. Erwin testified at the jury trial that petitioner drove the car over Crummett, but admitted that she had been intoxicated by heroin at the time. A defense witness stated that Erwin previously had identified Corella as the driver. Neither Corella nor petitioner took the stand, although the prosecution did introduce a postarrest statement by petitioner in which he acknowledged robbing Crummett, but claimed that Corella was the driver. There was medical testimony that a car had crushed Crummett's head, killing him, and that the injuries to his trunk, also vehicular, took place at least 30 seconds later.Petitioner was convicted of both robbery and first degree murder. The jury was instructed as to the elements of felony murder as well as premeditated murder; the murder conviction was returned by a general verdict. Judge Roylston held the penalty hearing required by Ariz.Rev.Stat.Ann. 13-703 (1989), then codified as 13-454, and sentenced petitioner to death for the murder and 15-20 years' imprisonment for the robbery. The judge found two statutory aggravating factors: that petitioner had a prior felony conviction involving the use or threat of violence on another person, 13-703(F)(2) (an armed kidnaping), and that petitioner "committed the offense in an especially heinous, cruel or depraved manner," 13-703(F)(6) ((F)(6) factor). Specifically, Judge Roylston's written order stated that "the Defendant did commit the offense in an especially heinous and cruel manner." App. 44. There was no explicit finding about the identity of the driver of the vehicle.Petitioner unsuccessfully sought postconviction relief in the trial court, attaching two affidavits by persons who claimed to have been told by Corella that she, not petitioner, drove the car over Crummett. The Supreme Court of Arizona affirmed the sentence, conviction, and denial of postconviction relief. State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976). Although the opinion is ambiguous on this point, it appears that the court did not reach petitioner's vagueness challenge to the "especially heinous, cruel or depraved" factor because his death sentence was supported by another valid aggravating factor, and no statutory mitigating factors applied. Id., at 196-197, 560 P.2d, at 51-52. We denied certiorari. . Federal habeas corpus proceedings ensued, as a result of which petitioner's conviction was found valid, but his sentence invalid because the sentencing judge had been constrained to consider a limited set of mitigating factors. Richmond v. Cardwell, 450 F.Supp. 519 (Ariz. 1978). Soon thereafter, the Supreme Court of Arizona held the Arizona death penalty statute unconstitutional insofar as it limited defendants to statutory mitigating factors, State v. Watson, 120 Ariz. 441, 444-445, 586 P.2d 1253, 1256-1257 (1978), and vacated every pending Arizona death sentence, see Brief for Respondents 5.Petitioner's resentencing took place in March, 1980. At the hearing, one defense witness testified that Erwin had identified Corella as the driver, while another stated that Corella had admitted the same. The defense also produced evidence of petitioner's rehabilitation in prison, and of the effect his execution would have on his family. Judge Roylston again sentenced petitioner to death, this time finding three statutory aggravating circumstances: under Ariz.Rev.Stat.Ann. 13-703(F)(2) (prior violent felony) and 13-703(F)(6) ("especially heinous, cruel or depraved" offense), as before, and also under 13-703(F)(1) (prior felony meriting life imprisonment) for a murder charge of which petitioner had been convicted after the first sentencing, even though the murder predated Crummett's. Once again, the judge found that "the Defendant did commit the offense in this case in an especially heinous and cruel manner," App. 74, but did not explicitly find that petitioner was the driver. The findings as to mitigation were, among others, that "Rebecca Corella was involved in the offense, but was never charged with any crime"; that "Faith [E]rwin was involved in the offense, but was never charged with any crime"; that "the jury was instructed both on the matters relating to the felony murder rule, as well as matters relating to premeditated murder"; and that "the Defendant's family ... will suffer considerable grief as a result of any death penalty that might be imposed." Id., at 75. The judge was unable to make a definitive finding as to rehabilitation, and concluded that "there are no mitigating circumstances sufficiently substantial to call for leniency." Id., at 76.A divided Supreme Court of Arizona affirmed, with each of the five justices joining one of three opinions. State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983) (Richmond II). Chief Justice Holohan wrote the principal opinion for himself and for Justice Hays, rejecting various challenges to petitioner's sentence, including a challenge to the (F)(6) factor. He reasoned that petitioner's offense was "heinous" and "depraved" (but not "cruel"), and that this factor was not unconstitutionally vague:"In [State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, , we discussed factors which lead to a finding of heinousness or depravity. One factor is the infliction of gratuitous violence on the victim; another related factor is the needless mutilation of the victim. Here the victim was already unconscious and bleeding when he was run over not once, but twice, each time from a different direction. The evidence indicates that the first run by the vehicle was over the victim's head, crushing his skull and killing him. The second run of the vehicle was over the body of the victim... . Again, the fact that the victim in the instant case was run over twice and his skull was crushed we find to be a ghastly mutilation of the victim." Id., at 319, 666 P.2d, at 64. The principal opinion then conducted an independent review of the sentence, concluding that "the mitigation offered by [petitioner] is not sufficiently substantial to outweigh the [three] aggravating circumstances." Id., at 321, 666 P.2d, at 66.Justice Cameron, joined by Vice Chief Justice Gordon, wrote a special concurrence. "I concur in the [principal opinion], except its finding that this crime was heinous and depraved, and I concur in the result." Id., at 324, 666 P.2d, at 69. The concurring justices contended that petitioner committed neither "gratuitous violence" nor "needless mutilation" within the meaning of State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, . Gratuitous violence would have obtained only if petitioner "knew or should have known that the victim was dead after the first pass of the car" - if he "inflicted any violence on the victim which he must have known was `beyond the point necessary to kill.'" Richmond II, 136 Ariz., at 323, 666 P.2d, at 68. Similarly, needless mutilation was interpreted to mean "distinct acts, apart from the killing, specifically performed to mutilate the victim's body." Ibid. But the concurrence agreed that a death sentence was appropriate for petitioner, even absent the (F)(6) factor.Justice Feldman dissented. He argued that the murder was not "especially heinous, cruel or depraved" and that the mitigating evidence of petitioner's rehabilitation precluded a death sentence. Id., at 324-325, 666 P.2d, at 69-70.We denied certiorari. . Petitioner filed a habeas corpus action in the United States District Court for the District of Arizona, challenging his sentence and conviction. The District Court denied relief, Richmond v. Ricketts, 640 F.Supp. 767 (1986), and the Ninth Circuit affirmed, 921 F.2d 933 (1990). As to the (F)(6) factor, the panel held that a valid narrowing construction of that factor had been imposed in Richmond II and, in the alternative, that petitioner's sentence could stand without that factor despite our decision in Clemons v. Mississippi, . "Elimination of the challenged factor would still leave enough support for [petitioner's] sentence, because the statute at issue here is not a "weighing" statute." 921 F.2d, at 947. The opinion later was amended to omit that sentence, but the amended opinion still reasoned: "Under the statute at issue in Clemons, the invalidation of an aggravating circumstance necessarily renders any evidence of mitigation "weightier," or more substantial in a relative sense; the same, however, cannot be said under the terms of the Arizona statute at issue here." 948 F.2d 1473, 1488-1489 (1992).The Ninth Circuit denied rehearing en banc, with four judges dissenting. Id., at 1476. We granted certiorari, , and now reverse.IIPetitioner challenges his death sentence imposed at resentencing in 1980. He argues that the "especially heinous, cruel or depraved" aggravating factor specified by Ariz.Rev.Stat.Ann. 13-703(F)(6) (1989), upon which the sentencing judge relied, was unconstitutionally vague, and that the Supreme Court of Arizona failed to cure this invalidity in Richmond II.The relevant Eighth Amendment law is well defined. First, a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty. See, e.g., Maynard v. Cartwright, ; Godfrey v. Georgia, . Second, in a "weighing" State, where the aggravating and mitigating factors are balanced against each other, it is constitutional error for the sentencer to give weight to an unconstitutionally vague aggravating factor, even if other, valid aggravating factors obtain. See, e.g., Stringer v. Black, ; Clemons v. Mississippi, supra, at 748-752. Third, a state appellate court may rely upon an adequate narrowing construction of the factor in curing this error. See Lewis v. Jeffers, ; Walton v. Arizona, . Finally, in federal habeas corpus proceedings, the state court's application of the narrowing construction should be reviewed under the "rational factfinder" standard of Jackson v. Virginia, . See Lewis v. Jeffers, supra, at 781.Arizona's "especially heinous, cruel or depraved" factor was at issue in Walton v. Arizona, supra. As we explained, "there is no serious argument that [this factor] is not facially vague." Id., at 654. Respondents do not argue that the factor had been narrowed adequately prior to petitioner's resentencing. Thus, it would have been error for Judge Roylston to give weight to the (F)(6) factor, if he indeed balanced the aggravating and mitigating factors in resentencing petitioner, and respondents now agree that the judge did engage in the weighing process. See Brief for Respondents 44 ("Arizona is a Weighing State"). The Arizona sentencing statute provides: "In determining whether to impose sentence of death the court shall take into account the aggravating and mitigating circumstances included in ... this section and shall impose a sentence of death if the court finds one or more of the aggravating circumstances ... and that there are no mitigating circumstances sufficiently substantial to call for leniency." Ariz.Rev.Stat.Ann. 13703(E) (1989). This provision governed petitioner's resentencing, and remains unamended in relevant part. Read most naturally, it requires the sentencer to weigh aggravating and mitigating circumstances - to determine the relative "substan[ce]" of the two kinds of factors. And the provision has been construed thus by the Supreme Court of Arizona. See, e.g., State v. Brewer, 170 Ariz. 486, 504, 826 P.2d 783, 801, cert. denied, post, p. 872; State v. Gretzler, 135 Ariz., at 54-55, 659 P.2d, at 13-14; State v. Valencia, 132 Ariz. 248, 250, 645 P.2d 239, 241 (1982); State v. Brookover, 124 Ariz. 38, 42, 601 P.2d 1322, 1326 (1979). Nor do respondents contend that the (F)(6) factor had no effect on the sentencing judge's calculus, and therefore was harmless.Rather, they point to State v. Gretzler, supra, which issued subsequent to the resentencing but prior to Richmond II, and which provided an adequate narrowing construction of the "especially heinous, cruel or depraved" factor. See Lewis v. Jeffers, supra, at 777-778 (holding that Gretzler definitions adequately narrowed (F)(6) factor); Walton v. Arizona, supra, at 652-655 (same). Respondents assert that the principal opinion in Richmond II properly applied the Gretzler construction of the (F)(6) factor, while the concurrence ignored the factor, and that both opinions reweighed. Petitioner argues that the principal opinion improperly applied Gretzler, and that the concurrence did not reweigh.We agree with petitioner that the concurrence in Richmond II did not reweigh. Our prior cases do not specify the degree of clarity with which a state appellate court must reweigh in order to cure an otherwise invalid death sentence, see Clemons v. Mississippi, supra, at 750-752; cf. Sochor v. Florida, (discussing clarity of state appellate court's harmless error analysis); Stringer v. Black, 503 U.S., at 229-232 (same), and we need not do so here. At a minimum, we must determine that the state court actually reweighed. "[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale," id., at 232, nor can a court "cure" the error without deciding, itself, that the valid aggravating factors are weightier than the mitigating factors. "[O]nly constitutional harmless error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence." Ibid. Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus if the sentence is to stand.The concurring justices in Richmond II did not purport to perform such a calculus, or even mention the evidence in mitigation. Respondents suggest that we presume reweighing, both because the justices of the Supreme Court of Arizona have an obligation to reweigh as part of their "independent review" of death sentences and because Justices Cameron and Gordon concurred in the portion of the principal opinion that articulated this obligation. Although there is some force to this suggestion, any presumption of reweighing is overcome by the language of the concurrence itself. After arguing that petitioner's offense did not satisfy the (F)(6) factor, the concurrence offered this brief explanation why a death sentence was justified nonetheless. "The criminal record of this defendant, however, clearly places him above the norm of first-degree murderers. He has been convicted of another first degree murder and a kidnapping, each arising in separate incidents. This history of serious violent crime justifies the imposition of the death penalty." Richmond II, 136 Ariz., at 323-324, 666 P.2d, at 68-69. The plain meaning of this passage is that petitioner's aggravated background provided a conclusive justification for the death penalty. The passage plainly evinces the sort of automatic affirmance rule proscribed in a "weighing" State - "a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance." Clemons v. Mississippi, 494 U.S., at 751. As to the two justices who joined the principal opinion in Richmond II, Chief Justice Holohan and Justice Hays, petitioner argues that these justices erred by relying upon the (F)(6) "especially heinous, cruel or depraved" factor. Specifically, petitioner contends that the justices refrained from determining that he drove the car over Crummett; that, in any case, the record before the Supreme Court of Arizona did not suffice to support such a determination; and that the (F)(6) factor would not apply even if he were the driver, unless he knew when he drove the car over Crummett the second time that Crummett was already dead. Respondents dispute each of these points, arguing that Chief Justice Holohan and Justice Hays did determine petitioner to be the driver; that the sentencing judge had made an implicit finding on this score; and that the (F)(6) factor was applicable to the driver, whether or not he knew Crummett to be dead. The parties do agree that a state appellate court can cure a death sentence of constitutional error even where only a minority of the court relies upon a particular aggravating factor, as in Richmond II, if such reliance is otherwise legitimate. See Brief for Respondents 8-33; Reply Brief for Petitioner 3. We assume, without deciding, that the parties are correct on this point. Instead, the dispute here is simply whether the justices who relied upon the (F)(6) factor in Richmond II ought to have done so.Of course, the question to be decided by a federal court on petition for habeas corpus is not whether the state sentencer committed state law error in relying upon an adequately narrowed aggravating factor. See Lewis v. Jeffers, 497 U.S., at 780. Rather, the federal, constitutional question is whether such reliance is "so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Ibid. Gretzler, the narrowing construction of Arizona's (F)(6) factor, reads as follows:"[T]he statutory concepts of heinous and depraved involve a killer's vile state of mind at the time of the murder, as evidenced by the killer's actions. Our cases have suggested specific factors which lead to a finding of heinousness or depravity. ... . . "[One such factor] is the infliction of gratuitous violence on the victim... . "[Another] is the needless mutilation of the victim." 135 Ariz., at 51-52, 659 P.2d, at 10-11. A murderer who intentionally drives a car over his victim twice arguably commits "gratuitous violence" within the meaning of Gretzler, whether or not he knows that the victim is dead after the first pass. An Arizona sentencer would not commit constitutional error by relying on the (F)(6) factor in sentencing that murderer. Although it may be true that knowledge of the victim's condition is required as a matter of Arizona law, indeed, Richmond II itself may now stand for that state law proposition, "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, supra, at 780. On the other hand, respondents do agree that, on the facts of this case, the Eighth Amendment would preclude the application of the (F)(6) factor to petitioner if he did not intentionally drive the car over Crummett. Tr. of Oral Arg. 38-39. Cf. Tison v. Arizona, (conduct short of intentional killing may show culpable mental state that justifies death penalty).But we need not decide whether the principal opinion in Richmond II remained within the constitutional boundaries of the (F)(6) factor. Respondents assume that at least a majority of the Supreme Court of Arizona needed to perform a proper reweighing and vote to affirm petitioner's death sentence if that court was to cure the sentence of the initial vagueness error. See Brief for Respondents 27, 49, n. 16. Thus, even assuming that the two justices who joined the principal opinion properly reweighed, their votes did not suffice to validate the death sentence. One more proper vote was needed, but there was none. As we have already explained, the concurring justices who also voted to affirm petitioner's sentence did not perform a curative reweighing, while the dissenter voted to reverse. Therefore, petitioner's sentence is invalid, whether or not the principal opinion properly relied upon the "especially heinous, cruel or depraved" factor.IIIPetitioner's death sentence was tainted by Eighth Amendment error when the sentencing judge gave weight to an unconstitutionally vague aggravating factor. The Supreme Court of Arizona did not cure this error, because the two justices who concurred in affirming the sentence did not actually perform a new sentencing calculus. Thus, the sentence, as it stands, violates the Eighth Amendment.We reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Court to enter an order granting the petition for a writ of habeas corpus unless the State of Arizona, within a reasonable period of time, either corrects the constitutional error in petitioner's death sentence or vacates the sentence and imposes a lesser sentence consistent with law. It is so ordered. JUSTICE THOMAS, concurring.The Court holds that the concurring Arizona Supreme Court justices violated the rule of Clemons v. Mississippi, , by failing to reweigh aggravating and mitigating circumstances after concluding that only two of the three aggravating circumstances found by the trial court were present in this case. Respondents do not claim that this rule is a new one for purposes of Teague v. Lane, , and that it is consequently unavailable to a habeas petitioner. T he reason, presumably, is that a Teague defense is foreclosed by Stringer v. Black, , which held that "there was no arguable basis" in February, 1985, to support the view that an appellate court in a weighing state "was permitted to apply a rule of automatic affirmance to any death sentence supported by multiple aggravating factors, when one is invalid." Id., at 231. Under Stringer, the concurring Arizona Supreme Court justices cannot be excused for their failure to reweigh; any reasonable jurist should have known that "automatic affirmance" in a weighing State violates the Eighth Amendment.* I joined the dissent in Stringer, and I continue to think that case was wrongly decided. In particular, I remain convinced that Stringer transformed Teague's retroactivity principle from a rule that validates "reasonableness" into a rule that mandates "prescience." Id., at 503 U.S., at 244 (SOUTER, J., dissenting). Had Stringer been decided differently, petitioner could not now complain that two Arizona Supreme Court justices violated the Constitution in 1983 by neglecting to reweigh. Nevertheless, because Stringer is good law, and because I agree that the concurring justices in this case did not reweigh, I join the Court's opinion.[Footnote *] Richmond's conviction became final on November 14, 1983 - 15 months before Stringer's conviction became final. I cannot imagine, however, that this distinction renders Stringer inapplicable to this case. The decision in Stringer rested on the premise that the rule against automatic affirmance "emerges not from any single case," but from a "long line of authority," Stringer v. Black, 503 U.S., at 232, and that "line of authority" consists entirely of cases decided before Richmond's conviction became final, see id., at 227-232.JUSTICE SCALIA, dissenting.The Court today holds that Justice Cameron's special concurrence erred in that, after having found that this murder was not committed in an "especially heinous, cruel or depraved manner," Ariz.Rev.Stat.Ann. 13-703(F)(6) (1989), it failed thereupon to reweigh the remaining aggravating and mitigating circumstances before affirming petitioner's death sentence. The Court does not reach petitioner's claim that Chief Justice Holohan's opinion erred in applying the Arizona limiting construction of this aggravating circumstance, see State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, , and in thus finding this murder to have been "heinous."Under Arizona law, a murderer is eligible for the death penalty if the trial court finds at least one statutory aggravating circumstance. Ariz.Rev.Stat.Ann. 13-703(E) (1989). Even accepting both of petitioner's arguments with regard to the "especially heinous, cruel or depraved" factor, it is beyond dispute that two constitutionally valid aggravating circumstances were found - namely, that petitioner had "been convicted of another offense in the United States for which, under Arizona law, a sentence of life imprisonment or death was imposable" (specifically, first-degree murder), 13-703(F)(1), and that petitioner had been "previously convicted of a felony in the United States involving the use or threat of violence on another person" (specifically, armed kidnaping), 13-703(F)(2). App. 73-74. Thus, the death sentence unquestionably complied with the narrowing requirement imposed by the line of cases commencing with Furman v. Georgia, . In my view, this Court has no colorable basis, either in constitutional text or in national tradition, for imposing upon the States a further constitutional requirement that the sentencer consider mitigating evidence, see Walton v. Arizona, (SCALIA, J., opinion concurring in part and concurring in judgment). As this and other cases upon our docket amply show, that recently invented requirement has introduced not only a mandated arbitrariness quite inconsistent with Furman, but also an impenetrable complexity, and hence a propensity to error, that make a scandal and a mockery of the capital sentencing process.Since, in my view, compliance with Furman is all that was required, any error committed by Chief Justice Holohan's opinion in finding "heinousness" was harmless, and any failure by Justice Cameron's special concurrence to reweigh raises no federal question. Accordingly, I would affirm. |
7 | The Clean Water Act (CWA) and the Resource Conservation and Recovery Act of 1976 (RCRA) prohibit the discharge or disposal of pollutants without a permit, assign primary authority to issue permits to the Environmental Protection Agency (EPA), and allow EPA to authorize a State to supplant the federal permit program with one of its own under specified circumstances. Respondent State sued petitioner Department of Energy (DOE) over its operation of a uranium processing plant in Ohio, seeking, among other relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. Although conceding, inter alia, that both statutes render federal agencies liable for "coercive" fines imposed to induce compliance with injunctions or other judicial orders designed to modify behavior prospectively, DOE asserted sovereign immunity from liability for "punitive" fines imposed to punish past violations. The District Court held that both statutes waived federal sovereign immunity from punitive fines, by both their federal facilities and citizen suit sections. The Court of Appeals affirmed in part, holding that Congress had waived immunity as to punitive fines in the CWA's federal facilities section and RCRA's citizen suit section, but not in RCRA's federal facilities section.Held: Congress has not waived the National Government's sovereign immunity from liability for civil fines imposed by a State for past violations of the CWA or RCRA. Pp. 615-629. (a) This Court presumes congressional familiarity with the common rule that any waiver of the Government's sovereign immunity must be unequivocal. See United States v. Mitchell, . Such waivers must be construed strictly in favor of the sovereign, and not enlarged beyond what the language requires. See, e.g., Ruckelshaus v. Sierra Club, . P. 5. (b) Although both the CWA and RCRA citizen suit sections authorize a State to commence a civil action "against any person (including ... the United States ...)," and authorize the district courts to impose punitive fines under the Acts' civil penalties sections, the incorporation of the latter sections must be read to encompass their exclusion of the United States from among the "person[s]" who may be fined, see, e.g., Engel v. Davenport, . The citizen suit sections' initial inclusion of the United States as a "person" goes only to the clauses subjecting the Government to suit, and a broader waiver may not be inferred. Both the CWA and RCRA contain various provisions expressly defining "person" for purposes of the entire section in which the term occurs, thereby raising the inference that a special definition not described as being for purposes of its "section" or "subchapter" was intended to have the more limited application to its own clause or sentence. This textual analysis gives effect to all the language of the citizen suit sections, since their incorporations of their statutes' civil penalties sections will effectively authorize punitive fines where a polluter other than the United States is brought to court, while their explicit authorizations for suits against the United States concededly authorize coercive sanctions. Pp. 615-620. (c) The relevant portion of the CWA's federal facilities section, 33 U.S.C. 1323(a) - which, inter alia, subjects the Government to "all ... State ... requirements ... and process and sanctions;" explains that the Government's corresponding liability extends to "any requirement, whether substantive or procedural ..., and ... to any process and sanction ... enforced in ... cour[t];" and provides that the Government "shall be liable only for those civil penalties arising under Federal law or imposed by a State ... court ... to enforce [its] order or ... process" - does not waive the Government's immunity as to punitive fines. Ohio's first argument, that 1323(a)'s use of the word "sanction" must be understood to encompass punitive fines, is mistaken, as the term's meaning is spacious enough to cover coercive, as well as punitive, fines. Moreover, good reason to infer that Congress was using "sanction" in its coercive sense, to the exclusion of punitive fines, lies in the fact that 1323(a) twice speaks of "sanctions" in conjunction with judicial "process," which is characteristically "enforced" through forward-looking coercive measures, and distinguishes "process and sanctions" from substantive "requirements," which may be enforced either by coercive or punitive means. Pp. 620-623. (d) Ohio's second 1323(a) argument, that fines authorized under an EPA-approved state permit program are within the scope of the "civil penalties" covered by the section's final waiver proviso, also fails. The proviso's second modifier makes it plain that "civil penalties" must at least include a coercive penalty, since they are exemplified by penalties "imposed by a State ... court to enforce [its] order." Moreover, the contention that the proviso's "arising under federal law" modifier is broad enough to include penalties prescribed by EPA-approved state statutes supplanting the CWA is answered by this Court's interpretation of the phrase "arising under" federal law in 28 U.S.C. 1331 to exclude cases in which the plaintiff relies on state law, even when the State's exercise of power in the particular circumstances is expressly permitted by federal law, see, e.g., Gully v. First Nat. Bank in Meridian, , and by the probability that Congress adopted the same interpretation of "arising under federal law" here, see, e.g., ICC v. Locomotive Engineers, . The plain language of the "civil penalties arising under federal law" phrase suggests an apparently expansive, but uncertain, waiver that is in tension with the clear waiver for coercive fines evinced in 1323(a)'s antecedent text; that tension is resolved by the requirement that any statement of waiver be unequivocal and the rule that waivers be narrowly construed. Pp. 623-627. (e) RCRA's federal facilities section - which, in relevant part, subjects the Government to "all ... State ... requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief)," and provides that the United States "shall [not] be immune ... from any process or sanction of any ... Court with respect to the enforcement of any such injunctive relief" - is most reasonably interpreted as including substantive standards and the coercive means for implementing those standards, but excluding punitive measures. All of the textual indications of the kinds of requirements meant to bind the Government refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it), in stark contrast to the statute's failure to mention any mechanism for penalizing past violations. Moreover, the fact that the only specific reference to an enforcement mechanism in the provision's final sentence describes "sanction" as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from "requirements" somehow extends to punitive fines that are never so much as mentioned. Pp. 627-628. 904 F.2d 1058 (CA6 1990), reversed and remanded. SOUTER, J., delivered the opinion for an unanimous Court with respect to Part II-C, and the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN and STEVENS, JJ., joined, post, p. 629.Fn James A. Feldman argues the cause for petitioner in No. 90-1341 and respondent in No. 90-1517. With him on the briefs were Solicitor General Starr, acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques B. Gelin.Jack A. Van Kley, Assistant Attorney General of Ohio, argued the cause for respondents in No. 90-1341 and petitioners in No. 90-1517. With him on the brief were Lee Fisher, Attorney General, and Timothy J. Kern and Terrence S. Finn, Assistant Attorneys General.Fn Fn Briefs of amici curiae wee filed for the State of California et al. by Gale A. Norton, Attorney General of Colorado, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Martha E. Rudolph, Cynthia M. Vagelos, and Mary Capdeville, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger and R. H. Connett, Senior Assistant Attorneys General, Edwin F. Lowry, Deputy Attorney General, Charles E. Cole, Attorney General of Alaska, Grant woods, Attorney General of Arizona, Paige Murphy-Young, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, Richard Blumenthal, Attorney General of Connecticut, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, Dennis J. Harnish, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, T. Travis Medlock, Attorney General of South Carolina, Charles W. Burson, Attorney General of Tennessee, Michael D. Pearigen, Deputy Attorney General, Dan Morales, Attorney General of Texas, Thomas Edwards, Assistant Attorney General, Paul Van Dam, Attorney General of Utah, Denise Chancellor, Assistant Attorney General, Jeffrey L. Amestoy Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Patrick O'Hare, Senior Assistant Attorney General, Kenneth O. Eikenberry, Attorney General of Washington, James K. Pharris, Senior Assistant Attorney General, and Jay J. Manning, Assistant Attorney General; for the Natural Resources Defense Council by Philip F. W. Ahrens III; and for the National Governors' Association et al. by Richard Ruda, Donald B. Verrilli, Jr., and Barry Levenstam. JUSTICE SOUTER delivered the opinion of the Court.The question in these cases is whether Congress has waived the National Government's sovereign immunity from liability for civil fines imposed by a State for past violations of the Clean Water Act (CWA), 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq., or the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2795, 2796, as amended, 42 U.S.C. 6901 et seq. We hold it has not done so in either instance.IThe CWA prohibits the discharge of pollutants into navigable waters without a permit. Section 402, codified at 33 U.S.C. 1342, gives primary authority to issue such permits to the United States Environmental Protection Agency (EPA), but allows EPA to authorize a State to supplant the federal permit program with one of its own if the state scheme would include, among other features, sufficiently stringent regulatory standards and adequate provisions for penalties to enforce them. See generally 33 U.S.C. 1342(b) (requirements and procedures for EPA approval of state water pollution permit plans); see also 40 CFR 123.1-123.64 (1991) (detailed requirements for state plans). RCRA regulates the disposal of hazardous waste in much the same way, with a permit program run by EPA, but subject to displacement by an adequate state counterpart. See generally 42 U.S.C. 6926 (requirements and procedures for EPA approval of state hazardous waste disposal permit plans); see also 40 CFR 271.1-271.138 (1991) (detailed requirements for state plans).This litigation began in 1986, when respondent State of Ohio sued petitioner Department of Energy (DOE) in Federal District Court for violations of state and federal pollution laws, including the CWA and RCRA, in operating its uranium processing plant in Fernald, Ohio. Ohio sought, among other forms of relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e.g., Complaint 164 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id. § 115 (seeking penalties for violations of state law and of CWA).1 Before the District Court ruled on DOE's motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim,2 and Ohio withdrew all outstanding claims for relief except its request for civil penalties for DOE's alleged past violations. See Consent Decree Between DOE and Ohio, App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on the amount of civil penalties DOE will owe if it is found liable for them, see Stipulation Between DOE and Ohio, id., at 87. The parties thus left for determination under the motion to dismiss only the issue we consider today: whether Congress has waived the National Government's sovereign immunity from liability for civil fines imposed for past failure to comply with the CWA, RCRA, or state law supplanting the federal regulation.DOE admits that the CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency, see Brief for Petitioner DOE 24 (discussing CWA); id., at 34-40 (discussing RCRA).3 DOE also concedes that the CWA and RCRA render federal agencies liable for fines imposed to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively, which we will speak of hereafter as "coercive fines." See id., at 19-20, and n. 10; see also n. 14, infra. The parties disagree only on whether the CWA and RCRA, in either their "federal facilities" 4 or "citizen suit" 5 sections, waive federal sovereign immunity from liability for fines, which we will refer to as "punitive," imposed to punish past violations of those statutes or state laws supplanting them.The United States District Court for the Southern District of Ohio held that both statutes waived federal sovereign immunity from punitive fines, by both their federal facilities and citizen suit sections. 689 F.Supp. 760 (1988). A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed in part, holding that Congress had waived immunity from punitive fines in the CWA's federal facilities section and RCRA's citizen suit section, but not in RCRA's federal facilities section. 904 F.2d 1058 (1990).6 Judge Guy dissented, concluding that neither the CWA's federal facilities section nor RCRA's citizen suit section sufficed to provide the waiver at issue. Id., at 1065-1069.In No. 90-1341, DOE petitioned for review insofar as the Sixth Circuit found any waiver of immunity from punitive fines, while, in No. 90-1517, Ohio cross-petitioned on the holding that RCRA's federal facilities section failed to effect such a waiver.7 We consolidated the two petitions and granted certiorari, .8 IIWe start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, Inc., , that any waiver of the National Government's sovereign immunity must be unequivocal, see United States v. Mitchell, . "Waivers of immunity must be "construed strictly in favor of the sovereign," McMahon v. United States, , and not "enlarge[d] ... beyond what the language requires." Eastern Transportation Co. v. United States, . Ruckelshaus v. Sierra Club, . By these lights, we examine first the two statutes' citizen suit sections, which can be treated together because their relevant provisions are similar, then the CWA's federal facilities section, and, finally, the corresponding section of RCRA.ASo far as it concerns us, the CWA's citizen-suit section reads that"any citizen may commence a civil action on his own behalf - "(1) against any person (including ... the United States ...) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation... . * * * * *"The district courts shall have jurisdiction ... to enforce an effluent standard or limitation, or such an order ... as the case may be, and to apply any appropriate civil penalties under [33 U.S.C. 1319(d)]." 33 U.S.C. 1365(a). The relevant part of the corresponding section of RCRA is similar: "[A]ny person may commence a civil action on his own behalf - "(1)(A) against any person (including ... the United States) ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter ... "(B) against any person, including the United States ... who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment... . * * * * * "... The district court shall have jurisdiction ... to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such other action as may be necessary, or both, ... and to apply any appropriate civil penalties under [42 U.S.C. 6928(a) and (g)]. 42 U.S.C. 6972(a). A State is a "citizen" under the CWA and a "person" under RCRA,9 and is thus entitled to sue under these provisions.Ohio and its amici argue that, by specifying the United States as an entity subject to suit and incorporating the civil penalties sections of the CWA and RCRA into their respective citizen suit sections, "Congress could not avoid noticing that its literal language subject[ed] federal entities to penalties." Brief for Respondent Ohio 36; see also, e.g., Brief for National Governors' Association et al. as Amici Curiae 14-16. It is undisputed that each civil penalties provision authorizes fines of the punitive sort.The effect of incorporating each statute's civil penalties section into its respective citizen suit section is not, however, as clear as Ohio claims. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations, see, e.g., Engel v. Davenport, (adoption of earlier statute by reference "makes it as much a part of the later act as though it had been incorporated at full length"); see also 2B N. Singer, Sutherland on Statutory Construction 51.08 (5th rev. ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to "person[s]."10 While both the CWA and RCRA define "person" to cover States, subdivisions of States, municipalities, and interstate bodies (and RCRA even extends the term to cover governmental corporations),11 neither statute define "person" to include the United States.12 Its omission has to be seen as a pointed one when so many other governmental entities are specified, see 2A Singer, supra, 47.23, a fact that renders the civil penalties sections inapplicable to the United States.Against this reasoning, Ohio argues that the incorporated penalty provisions' exclusion of the United States is overridden by the National Government's express inclusion as a "person" by each of the citizen suit sections. There is, of course, a plausibility to the argument. Whether that plausibility suffices for the clarity required to waive sovereign immunity is, nonetheless, an issue we need not decide, for the force of Ohio's argument wanes when we look beyond the citizen suit sections to the full texts of the respective statutes.What we find elsewhere in each statute are various provisions specially defining "person" and doing so expressly for purposes of the entire section in which the term occurs. Thus, for example, "[f]or the purpose of this [CWA] section," 33 U.S.C. 1321(a)(7) defines "person" in such a way as to exclude the various governmental entities included in the general definition of "person" in 33 U.S.C. 1362(5).13 Again, "[f]or the purpose of this section," 1322(a)(8) defines "person" so as to exclude "an individual on board a public vessel" as well as the governmental entities falling within the general definition. Similarly in RCRA, "[f]or the purpose of ... subchapter [IX]" the general definition of "person" is expanded to include "the United States Government," among other entities. 42 U.S.C. 6991(6). Within each statute, then, there is a contrast between drafting that merely redefines "person" when it occurs within a particular clause or sentence and drafting that expressly alters the definition for any and all purposes of the entire section in which the special definition occurs.14 Such differences in treatment within a given statutory text are reasonably understood to reflect differences in meaning intended, see 2A Singer, supra, 46.06, and the inference can only be that a special definition not described as being for purposes of the "section" or "subchapter" in which it occurs was intended to have the more limited application to its own clause or sentence alone. Thus, in the instances before us here, the inclusion of the United States as a "person" must go to the clauses subjecting the United States to suit, but no further.This textual analysis passes the test of giving effect to all the language of the citizen suit sections. Those sections' incorporations of their respective statutes' civil penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to court by a citizen, while the sections' explicit authorizations for suits against the United States will likewise be effective, since those sections concededly authorize coercive sanctions against the National Government.15 A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred, see Ruckelshaus, 463 U.S., at 685-686. Ohio's reading is therefore to be rejected. See United States v. Nordic Village Inc., ante, at 37.BThe relevant portion of the CWA's federal facilities section provides that "[e]ach department, agency, or instrumentality of the ... Federal Government ... shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner ... as any nongovernmental entity... . The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner... . [T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." 33 U.S.C. 1323(a). Ohio rests its argument for waiver as to punitive fines on two propositions: first, that the statute's use of the word "sanction" must be understood to encompass such fines, see Brief for Respondent Ohio 26-29; and, second, with respect to the fines authorized under a state permit program approved by EPA, that they "aris[e] under Federal law" despite their genesis in state statutes, and are thus within the scope of the "civil penalties" covered by the congressional waiver, id., at 29-35. 1Ohio's first proposition is mistaken. As a general matter, the meaning of "sanction" is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended. One of the two dictionaries Ohio itself cites reflects this breadth. See Black's Law Dictionary 1341 (6th ed. 1990) (defining "sanction" as a "[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. That part of a law which is designed to secure enforcement by imposing a penalty for its violation or offering a reward for its observance"). Ohio's other such source explicitly adopts the coercive sense of the term. See Ballentine's Law Dictionary 1137 (3d ed. 1969) (defining sanction in part as "[a] coercive measure").Beyond the dictionaries, examples of usage in the coercive sense abound. See, e.g., Penfield Co. of Cal. v. SEC, (fines and imprisonment imposed as "coercive sanctions" when imposed to compel target "to do what the law made it his duty to do"); Hicks v. Feiock, n. 6 (1988) ("sanction" in Penfield was civil, because it was conditional; contemnor could avoid "sanction" by agreeing to comply with discovery order); Fed.Rule Civ.Proc. 37(b) (describing as "sanctions" various steps district court may take in response to noncompliance with discovery orders, including holding recalcitrant deponent in contempt); United States v. Westinghouse Elec. Corp., 648 F.2d 642, 649 (CA9 1981) (discussing "sanctions," imposed pursuant to Fed.Rule Civ.Proc. 37(b), consisting of fine for each day litigant remained in noncompliance with District Court's discovery order); Latrobe Steel Co. v. United Steelworkers of America, Local 1537, 545 F.2d 1336, 1344 (CA3 1976) ("Coercive sanctions ... look to the future, and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order or by assuring that a potentially contumacious party adheres to an injunction by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience"); Vincent v. Preiser, 175 W. Va. 797, 803, 338 S. E. 2d 398, 403 (1985) (discussing contempt "sanctions" imposed "to compel compliance with a court order"); Maltaman v. State Bar of Cal., 43 Cal.3d 924, 936, 239 Cal.Rptr. 687, 692, 741 P.2d 185, 189-190 (1987) (describing as "sanctions" daily fine imposed on party until it complied with order directing it to transfer certain property); Labor Relations Comm'n v. Fall River Educators' Assn., 382 Mass. 465, 475-476, 416 N. E. 2d 1340, 1347 (1981) (affirming propriety of imposition of "coercive contempt sanction"); Cal.Civ.Proc.Code Ann. 2023(b)(4) (West Supp. 1992) (authorizing, in response to litigant's failure to obey discovery order, "terminating sanction[s]," including "contempt sanction[s]" and orders staying further proceedings by recalcitrant litigant). Cf. 42 U.S.C. 6992e(a) (waiving federal medical waste disposal facilities' sovereign immunity from various requirements, including such "sanctions as may be imposed by a court to enforce [injunctive] relief"); id. 6961 (using same language to waive other federal facilities' immunity from RCRA provisions). Thus, resort to a "sanction" carries no necessary implication of the punitive, as against the coercive.The term's context, of course, may supply a clarity that the term lacks in isolation, see, e.g., Shell Oil Co. v. Iowa Dept. of Revenue, . It tends to do so here, but once again the clarity so found cuts against Ohio's position. The word "sanction" appears twice in 1323(a), each time within the phrase "process and sanction[s]." The first sentence subjects Government agencies to "process and sanctions," while the second explains that the Government's corresponding liability extends to "any process and sanction, whether enforced in Federal, State, or local courts or in any other manner." Three features of this context are significant. The first is the separate statutory recognition of three manifestations of governmental power to which the United States is subjected: substantive and procedural requirements; administrative authority; and "process and sanctions," whether "enforced" in courts or otherwise. Substantive requirements are thus distinguished from judicial process, even though each might require the same conduct, as when a statute requires and a court orders a polluter to refrain from discharging without a permit. The second noteworthy feature is the conjunction of "sanction[s]" not with the substantive "requirements," but with "process," in each of the two instances in which "sanction" appears. "Process" normally refers to the procedure and mechanics of adjudication and the enforcement of decrees or orders that the adjudicatory process finally provides. The third feature to note is the statute's reference to "process and sanctions" as "enforced" in courts or otherwise. Whereas we commonly understand that "requirements" may be enforced either by backward-looking penalties for past violations or by the "process" of forward-looking orders enjoining future violations, such forward-looking orders themselves are characteristically given teeth by equity's traditional coercive sanctions for contempt: fines and bodily commitment imposed pending compliance or agreement to comply. The very fact, then, that the text speaks of sanctions in the context of enforcing "process," as distinct from substantive "requirements," is a good reason to infer that Congress was using "sanction" in its coercive sense, to the exclusion of punitive fines.2The last relevant passage of 1323(a), which provides that "the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court," is not to the contrary. While this proviso is unlike the preceding text in that it speaks of "civil penalties," not "sanctions," it is obviously phrased to clarify or limit the waiver preceding it. Here our concern is with its clarifying function (leaving its limiting effect until later), and it must be said that, as a clarifier, the proviso speaks with an uncertain voice. To be sure, the second modifier of "civil penalties" at least makes it plain that the term (like "sanction," to which it relates) must include a coercive penalty, since "civil" penalties are exemplified by those "imposed by a State or local court to enforce an order or the process of such court." To this extent, then, the proviso serves to confirm the reading we reached above.The role of the first modifier is problematical, however. On the one hand, it tugs toward a more expansive reading of "civil penalties." If, by using the phrase "civil penalties arising under federal law," Congress meant nothing more than coercive fines arising under Federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process, whether of a local, state, or federal court. Thus, the first modifier suggests that the civil penalties arising under federal law may indeed include the punitive, along with the coercive. Nevertheless, a reading expansive enough to reflect a waiver as to punitive fines would raise a new and troublesome question about the source of legal authority to impose such a fine. As far as federal law is concerned, the only available source of authority to impose punitive fines is the civil penalties section, 1319(d). But, as we have already seen, that section does not authorize liability against the United States, since it applies only against "persons," from whom the United States is excluded.Ohio urges us to find a source of authority good against the United States by reading "arising under Federal law" to include penalties prescribed by state statutes approved by EPA and supplanting the CWA. Ohio argues for treating a state statute as providing penalties "arising under Federal law" by stressing the complementary relationship between the relevant state and federal statutes and the role of such state statutes in accomplishing the purpose of the CWA. This purpose, as Ohio states it, is "to encourage compliance with comprehensive, federally approved water pollution programs while shielding federal agencies from unauthorized penalties." Brief for Respondent Ohio 34-35. Ohio asserts that "federal facility compliance ... cannot be ... accomplished without the [punitive] penalty deterrent." Id., at 35.The case for such pessimism is not, however, self-evident. To be sure, an agency of the Government may break the law where it might have complied voluntarily if it had faced the prospect of punitive fines for past violations. But to say that its "compliance cannot be ... accomplished" without such fines is to assume that, without sanctions for past conduct, a federal polluter can never be brought into future compliance, that an agency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitment. The position seems also to ignore the fact that, once such fines start running, they can be every dollar as onerous as their punitive counterparts; it could be a very expensive mistake to plan on ignoring the law indefinitely on the assumption that contumacy would be cheap.Nor does the complementary relationship between state and Federal law support Ohio's claim that state law fines thereby "arise under federal law." Plain language aside, the far more compelling interpretative case rests on the best known statutory use of the phrase "arising under federal law," appearing in the grant of federal question jurisdiction to the courts of the United States. See 28 U.S.C. 1331. There, we have read the phrase "arising under" federal law to exclude cases in which the plaintiff relies on state law, even when the State's exercise of power in the particular circumstances is expressly permitted by federal law. See, e.g., Gully v. First Nat. Bank in Meridian, (suit over state taxation of nationally chartered bank does not arise under federal law, even though such taxation would not be possible without federal approval); International Bridge Co. v. New York, (congressional approval of construction of bridge by state-chartered company does not make federal law the source of right to build bridge).16 Congress' use of the same language in 1323(a) indicates a likely adoption of our prior interpretation of that language. See, e.g., ICC v. Locomotive Engineers, (interpreting statute based on previous interpretation of same language in another statute); Northcross v. Memphis Bd. of Education, (per curiam) (similarity of language in two statutes "strong indication that [they] should be interpreted pari passu"). The probability is enough to answer Ohio's argument that "arising under Federal law" in 1323(a) is broad enough to cover provisions of state statutes approved by a federal agency, but nevertheless applicable ex proprio vigore.Since Ohio's argument for treating state penalty provisions as arising under federal law thus fails, our reading of the last-quoted sentence from 1323(a) leaves us with an unanswered question and an unresolved tension between closely related statutory provisions. The question is still what Congress could have meant in using a seemingly expansive phrase like "civil penalties arising under Federal law." Perhaps it used it just in case some later amendment might waive the Government's immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless. The question has no satisfactory answer.We do, however, have a response satisfactory for sovereign immunity purposes to the tension between a proviso suggesting an apparently expansive but uncertain waiver and its antecedent text that evinces a narrower waiver with greater clarity. For, under our rules, that tension is resolved by the requirement that any statement of waiver be unequivocal: as against the clear waiver for coercive fines, the indication of a waiver as to those that are punitive is less certain. The rule of narrow construction therefore takes the waiver no further than the coercive variety.CWe consider, finally, the federal facilities section of RCRA, which provides, in relevant part, that the National Government"shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) ... in the same manner, and to the same extent, as any person is subject to such requirements... . Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief." 42 U.S.C. 6961. Ohio and its amici stress the statutory subjection of federal facilities to "all ... requirements," which they would have us read as an explicit and unambiguous waiver of federal sovereign immunity from punitive fines. We, however, agree with the Tenth Circuit that "all ... requirements" "can reasonably be interpreted as including substantive standards and the means for implementing those standards, but excluding punitive measures." Mitzelfelt v. Department of Air Force, 903 F.2d 1293, 1295 (1990).We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit's understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer's willingness and capacity to comply in the future.The drafters' silence on the subject of punitive sanctions becomes virtually audible after one reads the provision's final sentence, waiving immunity "from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief." The fact that the drafters' only specific reference to an enforcement mechanism described "sanction" as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from "requirements" somehow unquestionably extends to punitive fines that are never so much as mentioned.17 IIIThe judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
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